|Caroline Mala Corbin|
In a sweeping ruling on abortion, the United States Supreme Court struck down a highly restrictive Texas law in a 5 to 3 decision yesterday. The decision heralds a sea change in abortion law, and puts many other abortion restrictions in jeopardy.
Caroline Mala Corbin is Professor of Law at the University of Miami School of Law. She teaches U.S. Constitutional Law I, U.S. Constitutional Law II, First Amendment, the Religion Clauses, the Free Speech Clause, and Feminism and the First Amendment. Her scholarship focuses on the First Amendment’s speech and religion clauses, particularly their intersection with equality issues.
What was the Texas law?
Two regulations of the Texas law were at issue in yesterday’s decision. One required clinic doctors performing abortions to obtain admitting privileges at a nearby hospital. The other required that all clinics, even those that provided medication abortions that did not involve any surgery, to meet the same standards as hospital-like surgical centers.
Why was the abortion law in Whole Woman’s Health v. Hellerstedt unconstitutional?
The Court held that both of Texas’s regulations “vastly increase the obstacles confronting women seeking abortions in Texas without providing any benefit to women’s health capable of withstanding any meaningful scrutiny.” In other words, the law imposed an unconstitutional undue burden on women seeking to end their pregnancy.
Why was the decision significant?
The decision was significant for at least two reasons. To start, it actually recognized that these laws created hardships for women. Previous cases had been quite stingy in this regard. For example, after observing that a 24-hour waiting period would require women to make two (sometimes long) trips to the doctor, increasing the expense, delay, and difficulty of obtaining an abortion, an earlier case nevertheless held that the waiting periods, while burdensome, did not create an undue burden.In contrast, the Whole Woman’s Health Court did not hesitate to hold that cutting the number of abortion clinics in half created a substantial obstacle for the women of Texas.
In addition, for the first time, the Supreme Court examined, in great detail, whether these purported safety regulations actually increased safety. The answer was a resounding no. Moreover, the Court made clear that a court should not simply defer to the legislature’s factual conclusions but should examine the scientific evidence itself. As the decision emphasized, “Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake.”
Will the decision affect other abortion restrictions?
Yes. Some courts, including the rebuked and reversed Fifth Circuit Court of Appeals, were treating the undue burden test as essentially toothless. The Supreme Court made very clear that “The Court of Appeals’ articulation of the relevant standard is incorrect.” If a state claims that challenged regulations were safety regulations meant to improve women’s health yet cannot provide any proof that they in fact improve women’s health, the regulations should fall.
Will the decision have any effect outside abortion cases?
Possibly. The question of how much courts should defer to erroneous factual findings may arise in religious liberty claims. For example, many religious observers oppose morning-after pills on the mistaken belief that they kill fertilized eggs. A thorough examination of the scientific evidence would reveal that they do not.
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