Today’s abortion decision is good news for supporters of reproductive rights, but it didn’t provide much guidance about what it means for a law to place an “undue burden” on women seeking abortions. The majority opinion ruled that Texas’s law failed the test laid out in Casey, which balances the burden a law places on women seeking abortions with the benefit the law confers. The problem is that HB2 so plainly provided no benefit that it wasn’t really a hard call. Here is Justice Breyer on the requirement that doctors performing abortions have admitting privileges at a nearby hospital:
When directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.
….That brief describes the undisputed general fact that “hospitals often condition admitting privileges on reaching a certain number of admissions per year.”…The president of Nova Health Systems…pointed out that it would be difficult for doctors regularly performing abortions at the El Paso clinic to obtain admitting privileges at nearby hospitals because “[d]uring the past 10 years, over 17,000 abortion procedures were performed at the El Paso clinic [and n]ot a single one of those patients had to be transferred to a hospital for emergency treatment, much less admitted to the hospital.” In a word, doctors would be unable to maintain admitting privileges or obtain those privileges for the future, because the fact that abortions are so safe meant that providers were unlikely to have any patients to admit.
And here he is on the requirement that abortion providers meet the requirements for surgical centers:
The record makes clear that the surgical-center requirement provides no benefit when complications arise in the context of an abortion produced through medication. That is because, in such a case, complications would almost always arise only after the patient has left the facility.
Nationwide, childbirth is 14 times more likely than abortion to result in death, but Texas law allows a midwife to oversee childbirth in the patient’s own home. Colonoscopy, a procedure that typically takes place outside a hospital (or surgical center) setting, has a mortality rate 10 times higher than an abortion.
The majority opinion relied primarily on reams of real-world evidence that made it crystal clear that HB2 provided no bona fide safety benefits. Unfortunately, that means that no real discussion of “undue burden” was required, so it’s not clear what effect this case will have as precedent. We’ll have to wait and see what lower courts do with it and how the anti-abortion forces rewrite their laws in order to get another crack at a different ruling.
