The U.S. Supreme Court on June 27 struck down a set of three-year-old Texas laws governing abortion providers in the state.
Those laws, setting strict physical stipulations on facilities and requiring hospital admitting privileges for doctors providing abortions, are similar to laws subsequently passed in Ohio. Pro-choice activists believe Ohio’s laws might also prove unconstitutional and vulnerable to legal challenge, but conservative officials and pro-life advocates disagree.
Lawmakers in Texas, Ohio and other states with similar provisions say the laws are designed to protect women’s health and safety. In a major blow to pro-life activists and lawmakers, the court disagreed in a 5-3 decision. Writing the majority opinion, Justice Stephen Breyer wrote that “the surgical-center requirement, like the admitting privileges requirement, provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions and constitutes an ‘undue burden’ on their constitutional right to do so.”
The court cited its landmark 1973 Roe v. Wade decision, which ruled that access to abortion is a constitutionally guaranteed right for women. By placing unreasonable restrictions on that right, justices said, Texas violated the constitution.
In a concurring opinion, Justice Ruth Bader Ginsburg cited Roe and wrote that laws “that do little or nothing for health, but rather strew impediments to abortion, cannot survive judicial inspection.”
Texas Attorney General Ken Paxton described the law as “an effort to improve minimum safety standards and ensure capable care for Texas women. It’s exceedingly unfortunate that the court has taken the ability to protect women’s health out of the hands of Texas citizens and their duly elected representatives.”
The Republican-led Texas legislature passed the laws in the summer of 2013 over a furor from pro-choice advocates. Among the stipulations: Abortion providers must meet standards the state has set for hospitals, including wide hallways and other requirements not generally required for outpatient surgery centers.
Doctors working in clinics must also have admitting privileges at nearby hospitals. That rule is very similar to an Ohio law passed in 2013 requiring doctors working in clinics that provide abortions to have transfer agreements with hospitals. Those are slightly different than admitting privileges, pro-life activists point out — they’re for emergencies — but pro choice advocates say it sets up new opportunities to challenge Ohio and other states’ tight restrictions in court.
Amy Hagstrom Miller, whose Whole Woman’s Health clinics are named plaintiffs in the case, told the Associated Press that the decision could “put a stop to this trend of copycat legislation” in states like Missouri and Tennessee, which have nearly identical laws, and in places like Ohio, which have somewhat similar ones.
“Now we must redouble our efforts across the country to end similar state restrictions that push abortion out of reach for too many women,” Miller said in a statement. “It’s time to pass proactive state laws so a woman has access to quality clinics in her community, can afford abortion and doesn’t face shame or stigma when she seeks care.”
After requiring transfer agreements between clinics and hospitals, Ohio in 2013 passed another law prohibiting state-funded hospitals from entering into those agreements. That law cost Cincinnati’s last remaining clinic, the Elizabeth Campbell Medical Center, its transfer agreement with University of Cincinnati Hospital. That clinic, run by Planned Parenthood, has gone through a number of near-closures and last-minute license renewals by the state since. If it closes, Cincinnati would become the largest metropolitan area in the country without direct access to a clinic that provides abortions.
The Ohio Attorney General’s office told media following the ruling that the Texas laws and Ohio’s restrictions aren’t the same. Attorney General Mike DeWine has vigorously defended Ohio’s abortion restrictions and last year legally pursued Planned Parenthood, which runs clinics in the state, on allegations that it mishandled fetal tissue. Those charges were never substantiated, and the AG’s office recently settled with the abortion provider over legal bills related to the case.
Democrats in Ohio have pushed for repeal of the state’s laws following the decision.
“With this ruling, it’s time for John Kasich and Mike DeWine to stop defending similar laws that Republican legislators have put into place — laws that do nothing to protect Ohio women and make it harder for them to access the care they need,” Ohio Democratic Party Chairman David Pepper said in a statement.
Since the laws have gone into effect, Ohio clinics providing abortions have dwindled from 16 to just nine. In Texas, the restrictions shut down more than half of the state’s 40 abortion providers, and the state might have lost all but eight in the near future had the court not struck down the laws.
Chief Justice John Roberts, along with Justices Clarence Thomas and Samuel Alito, dissented, saying the court was overstepping its bounds in striking down the state laws. Suits over nearly identical laws around admitting privileges requirements are pending in Louisiana and Mississippi. ©
This article appears in Jun 29 – Jul 6, 2016.