On Monday, the US Supreme Court made a landmark ruling that represented a major victory for pro-choice activists. In a 5–3 decision, the justices struck down a Texas law that imposed strict new rules on clinics and doctors that performed abortions—rules that forced many clinics to close and made it much more difficult for many women in the state to access safe abortions.
Those restrictions, Justice Stephen Breyer wrote in the majority opinion, created an "undue burden on abortion access." And the ramifications of Whole Woman's Health v. Hellerstedt will be felt far beyond the Lone Star State.
Basically, Hellerstedt pushes back on the last major Supreme Court case to tackle abortion: 1992's Planned Parenthood v. Casey. Back then, the court decided that states could place restrictions on abortion access, provided they didn't result in an "undue burden" on women. Conservative legislators then began to test those waters, passing laws mandating waiting periods and ultrasounds. In Texas's case, the new law required abortion clinics to meet the same standards as hospitals and forced abortion doctors to gain admitting privileges to nearby hospitals. Those onerous demands had an immediate effect: When the law passed in 2013, there were about 40 places one could get an abortion in Texas; today there are about 20.
The Hellerstedt decision held that that was taking things too far, and it marks the first time the Supreme Court has defined what an "undue burden" looks like—basically, it's a signal to lawmakers that they can't simply make up whatever rules they like in the name of limiting abortions.
To get a sense of what this would mean for both sides of the never-ending legal and political battle over abortions, I called up Carol Sanger, a professor at Columbia Law School and an expert in reproductive rights.
VICE: Were you surprised by this decision?
Carol Sanger: Well I was very hopeful about it. I'm not sure I'm surprised. But I thought the points were grasped so well and I thought [Breyer's decision] was so thorough. And for the people who didn't really get the points, Justice [Ruth Bader] Ginsberg really banged out a page-and-a-half decision just highlighting it. It was like the CliffNotes version.
People are hailing this as the most important decision about abortion in more than 20 years. Is that hyperbole?
It's certainly not hyperbolic. There have been three big decisions in abortion jurisprudence. The first is Roe v. Wade, which [ruled] that abortion falls within a constitutional right of privacy and that women have the right to choose it. The second one is Planned Parenthood v. Casey, which was in 1992—people were putting money on it overturning Roe. It said that [the Supreme Court doesn't] overturn cases lightly, and that people have gotten used to [abortion] as a liberty that they have, and that an entire generation has come to rely on that right.
That was the good part of the decision. The bad part was everything else that followed, because they changed the ruling of Roe significantly. Roe had said that in the first trimester, it's just up to the woman and her doctor, and no one can butt in. And Casey said, "We're getting rid of those trimesters and the state can try to persuade women against abortion from the moment of conception." So that was a very big change, and it was a signal to the states that they could pass more aggressive laws persuading women against abortion, and that's when this sort of avalanche of legislation came in––waiting periods, for example. Telling people they should come back [to the clinic] in 48 hours so they can think harder.
So Casey was really important, because while it upheld Roe's essential core, it made it possible to regulate abortion like crazy. And that's what states that wanted to do that did.
What is the "undue burden" standard set up by Casey?
That means that if a state enacts a law with the purpose or effect of putting a substantial obstacle in front of a woman seeking an abortion, then that has gone too far. That has denied her the right that she got in Roe. In Casey, Pennsylvania had passed a bunch of restrictions, and the only one that they found went too far was women requiring women to notify their husbands that they were getting abortions before they did. The court had read about domestic violence in American families and thought that angry husbands might prevent them from actually getting the abortion by either emotional threat or by locking them up.
So this case comes up in Texas, and the plaintiff said it's gone too far. If this legislation doesn't have the purpose of the effect of putting a substantial obstacle in front of women, what does? And the court said that it does.
It seems bizarre that the lower courts couldn't predict this was going to effectively shutter so many abortion clinics in Texas––it ended up closing 50 percent of them.
Well Texas made a big fuss about it. It's an interesting part of the decision––they had said that they thought the clinics could handle all this business. There's really a terrific line in the decision where the court says, "More fundamentally, in the face of no threat to women's health, Texas seeks to force women to travel long distances to get abortions in crammed-to-capacity superfacilities." Crammed is not a really nice word. And in the sentence after it, it says that doctors won't be able to spend [as much] time with their patients.
It's really ironic, because the pro-life movement says, "Doctors are just running abortion mills. They just want your money." But here, the Texas law itself, according to the state of Texas, is gonna create abortion mills––"crammed" facilities where you don't get enough time with your doctor. That's very ironic to me.
But that sentence also says it's for no medical benefit that women will have to travel long distances. So that sentence sort of encapsulates what the burden is on women. And it's not like it says, "to save their lives, women will have to do X, Y, and Z." They don't get anything out of it. And it was made clear beyond opposition in the district court that abortion is a safe procedure. And the court says, in fact, childbirth is 14 times more risky.
And you can have a midwife come to your house.
Exactly. So, do you need an ambulatory facility at your house? No.
Are there going to be a lot more legal challenges to laws that resemble the Texas law in the wake of this decision?
Many cases will now be brought in states where they haven't been, or where they've lost, in light of this decision. And that doesn't mean that all of those regulations [will be] struck down like in Texas.
Even though the Texas law was stuck down, it still resulted in a lot of clinics closing, and the Supreme Court can't immediately reopen them by fiat. Even with this precedent, couldn't a state legislator just pass a very restrictive law with the knowledge that it would be very hard to get an abortion in his or her state for at least a few years?
Well, they have been doing that. They've sort of been passing things as a taunt––that's sort of a way to think about it. Like, "Tell us we can't do that, go ahead." Lately, the courts have gone so far by driving, in the case of Mississippi, all of the clinics out of the state. Some legislators are completely brazen about this, and say things like, "Well this ought to cut abortion down to size." They're completely transparent about what their purpose is.
So what's the next big fight after Monday's decision?
This one really only dealt with requirements on the provider or the facility, and what we haven't dealt with is requirements on women. The court said that when they're deciding what the facts are and what the burdens are, they're gonna look at actual data. They don't have to rely wholly on what the legislature says. If you look at the Texas legislation, they have lines like, "in order to protect the welfare of women." And the court says that they don't have to take that for gospel if there are facts that say whether [these rules] benefit women or not.
This interview has been edited and condensed for clarity.
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