Hours after a monumental supreme court ruling declared one of the US’s harshest abortion restrictions to be unconstitutional, abortion rights activists were already jubilant over the prospect that many more restrictions could be struck down in its wake.
“Without question, today’s ruling was a game changer,” said Nancy Northup, the president of the legal group the Center for Reproductive Rights, whose attorneys argued for the clinics before the court. “This decision will be critical in the many, many legal challenges taking place around the country.”
The ruling on Monday in Whole Woman’s Health v Hellerstedt struck down a Texas law that required abortion clinics to meet expensive, hospital-like building requirements and required abortion providers to have patient-admitting privileges with local hospitals.
Anti-abortion legislators said the rules were necessary to safeguard women’s health. But they put up little hard evidence, and the law was widely viewed as a gambit to shut clinics down. On Monday, in a 5-3 decision, the court ruled that two measures – and by extension, the many copycat laws in other states – were an unconstitutional burden on women’s right to access abortion.
The south and midwest will feel the impact of Monday’s rulings in short order. Alabama has bowed out of its fight to impose admitting privileges on providers, which would have closed four out of five clinics. One day after the ruling, the supreme court declined to hear the case for a similar admitting privileges law out of Wisconsin – which would have shut one of the state’s three clinics – in effect striking the measure down.
In the coming weeks and months, lower courts are likely to strike down nearly identical measures in Arkansas, Louisiana and Oklahoma, where the laws threatened to close all but one clinic, and Mississippi, where the law threatens the only clinic operating in the entire state.
Almost instantly following Monday’s ruling, providers in those states began breathing easier. “I felt like nothing was certain until it was a done deal at the court,” said Willie Parker, the chair of Physicians for Reproductive Health. Parker, who performs abortions in Mississippi – where he is the only provider – and Alabama, has struggled in both states to obtain admitting privileges. “Today, I’m extremely pleased.”
There are even a few plans to immediately restore abortion access where it was in limbo. In Columbia, Missouri, where the Planned Parenthood clinic is licensed to offer abortions but its physicians don’t have the admitting privileges required by state law, the group signalled that it was ready to mount a legal challenge. A new facility in Oklahoma – where an admitting privileges law is all but certain to be struck down – will bring the number of clinics there to three. Its physicians do not have admitting privileges.
In the wake of Monday’s decision, anti-abortion activists vowed that their efforts to pass new clinic regulations were not over.
“We don’t read today’s decision as foreclosing all clinic regulations and admitting privilege requirements,” said Clarke Forsythe, the senior legal counsel for Americans United for Life, an anti-abortion group that fuels the movement with model legislation, speaking at the nonpartisan National Constitution Center on Monday night. “But it clearly puts a greater burden on the states to give the justices more evidence.”
Indeed, a key part of why the supreme court struck down HB 2 was that Texas provided scarce evidence to justify the law. “We have found nothing in Texas’s record evidence that shows that, compared to prior law … the new law advanced Texas’s legitimate interest in protecting women’s health,” read one section of the majority opinion.
One legacy of the opinion, then, could be that the anti-abortion movement strives to produce a larger body of research, said Mary Ziegler, a Florida State University legal historian who also spoke at the center, as its opponents did to illustrate the harms of HB 2. Much of the research produced by anti-abortion groups is of a scientifically dubious nature.
For now, the fight will turn to the countless laws on the books which may now be deemed unconstitutional in light of the court’s decision.
“There are literally thousands of laws regulating abortion,” said Michael Dorf, a Cornell Law School professor. “And now you have a huge category, purported health regulations, that are going to be highly vulnerable based on this decision.” Laws that regulate doctor certification and onerous record-keeping may be two examples.
“This victory gives us the opportunity to march state by state, legislature by legislature, rule by rule, bill by bill, and reclaim women’s health and rights across the country, 100%, no burdens on any woman, anywhere,” said Dawn Laguens, the executive vice-president of Planned Parenthood.
But the impact of Monday’s ruling will not be automatic or even imminent in every state that restricts abortion providers.
It remains to be seen how courts will apply the decision when the laws at issue are not nearly as destructive as HB 2 to abortion access. In Florida, for example, a law will take effect this summer that requires admitting privileges or transfer agreements and could close an unknown number of the state’s clinics. Florida, though, has about 60 clinics – at its height, Texas had about 40, and HB 2 threatened to cut the number of Texas clinics by three-quarters.
And while several states have active litigation affected by the court’s ruling, many other states have had requirements like those in Texas on the books for years. All seven providers in Tennessee and the sole provider in North Dakota, for example, have managed to comply with requirements for providers to have hospital admitting privileges. Clinics in Pennsylvania, Virginia, South Carolina and Michigan, with some exceptions, meet building requirements that are comparable to those of other major surgery centers.
Overturning these older restrictions would be more complicated, said Priscilla Smith, a professor at Yale Law School, because as long as the clinics can operate, they may not have standing to bring a lawsuit. It may take a precipitating event – a physician without admitting privileges desiring to perform abortions, or a provider trying to open a new clinic without the expensive building requirements, or even a patient challenge – for those laws to come into play.
Anti-abortion activists, though, are worried about the durability these longtime measures. Denise Burke, AUL’s vice-president of legal affairs, made it clear on Monday that the group considered much of its handiwork to be imperiled. “Twenty-nine states regulate (to widely varying degrees) abortion facilities,” and another fifteen require providers or an affiliate to have admitting privileges, she said in a statement. “As a result of today’s decision, many of these protective laws may be in jeopardy, subject to legal challenges brought by an increasingly predatory abortion industry more motivated by profit margins than by protecting the very women it claims to champion.”
Hundreds of abortion restrictions are nonetheless insulated from the court’s monumental ruling. Those laws broadly include measures that mandate certain information be provided to women – even slanted information – laws to dissuade women from abortion, and so-called fetal protective laws.
Burke noted that AUL continued to push many bills that would easily survive Monday’s ruling, such as bans on abortion after 20 weeks and laws that require minors to have permission from their parents for an abortion.
Abortion waiting periods that stretch up to 72 hours, and bans on the most common method of second-trimester abortion, are also not immediately implicated by the court’s latest decision. (Both are laws that anti-abortion groups have moved aggressively to enact in recent years.) The same is true for one of the biggest barriers to abortion access in the US: a perennial amendment in Congress that lets states ban Medicaid coverage for abortion.
And no one who celebrated Monday’s ruling is discounting the chances of an anti-abortion counter-attack.
“I full well expect that people who are convinced ideologically that they are right to restrict access to abortion, they will not stop because of this setback,” said Parker, the Mississippi abortion provider. “I think that they will find other ways to impair abortion access. In fact, I count on it.”
