“We…conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against important state interests in regulation.”
Roe v. Wade—we all know the historic case and as we come upon the 43rd anniversary of the famous case, the U.S. Supreme Court has handed down another important decision regarding abortion. The majority opinion declared that laws masked as health and safety regulations that are designed to actually close down abortion clinics are unequivocally unconstitutional.
The case came before the Court in Whole Woman’s Health v. Hellerstedt, stemming from a Texas law that placed heavy restrictions on the facilities that could perform abortions, which, as a result, severely limited the number of approved clinics within the state.
But, wait a minute.
Didn’t the Original Decision in Roe v. Wade Give States Power to Regulate Abortions?
Yes, it did. More specifically, it gave states the right to create regulations in order to insure procedures were performed with the maximum safety of the patient in mind. So, what’s the problem with the Texas law?
Recognizing that states have a legitimate interest in protecting the health and safety of the patient doesn’t give states free reign to make regulations that severely limit and restrict actually getting an abortion. Basically, states can’t make regulations that make getting an abortion nearly impossible to obtain. Masquerading them as health and safety regulations doesn’t make them constitutional. Any regulation on the topic has to further a legitimate state interest, i.e. proving the law actually contributes to health and safety.
Two Provisions, Both Unconstitutional
There were 2 provisions in particular that the Court found unconstitutional. The first required any physician performing or inducing an abortion to have active admitting privileges at a hospital not further than 30 miles from the facility on the day of the procedure. This provision decreased the number of facilities from 40 to 20, which doubled the number of women living more than 50 miles away from a clinic, increased those living more than 100 miles away by 150%, increased those living more than 150 miles away by 350%, and so on in increasing numbers. The second provision required abortion facilities to meet minimum standards for ambulatory surgical centers. Requiring facilities to meet these minimum standards for ambulatory surgical centers would cost facilities anywhere from $1.5 million to $3 million—per clinic.
We know from a 1992 case, Planned Parenthood of Southeastern Pa. v. Casey, that an undue burden on a woman’s right to decide to have an abortion exists if a law consequently places a “substantial obstacle” in the path to obtain an abortion. This rule applies not only when the purpose of legislation is to hinder abortions, but also if the effect of the legislation places substantial obstacles in the way.
Without getting into the nitty gritty of Justice Breyer’s majority decision, the provisions were unnecessary because they didn’t offer any additional health or safety benefits that didn’t already exist and, thus, only limited the number of clinics that women would have access to.
Decision Will Undoubtedly Affect Other States
Alabama, Mississippi, and Wisconsin all had similar laws on the books. At least 26 other states have at least one of the provisions that was struck down in Texas’ legislation. Ten of those states require admitting privileges, while the others require ambulatory surgical center standards. Currently, the laws in Alabama, Kansas, Louisiana, Mississippi, Oklahoma and Wisconsin related to the admitting privileges are being challenged. Three of those have come to a dead end with the Supreme Court’s decision.
While the Court’s decision is a big one for pro-choice activists, several conservative states continue to pass legislation that further restricts abortions. Nine states have introduced legislation that would ban nearly all abortions. Four states have banned the most common form of second-trimester abortion, while 17 states ban abortions after 20 weeks. Indiana, one of the nation’s strictest states on the topic, recently passed legislation requiring the woman to listen to the heartbeat immediately prior to having a procedure. What health and safety interest does that protect?
Although a landmark decision that will force states to change their conflicting laws, there’s no doubt conservative states will continue to pass legislation and I’m sure this won’t be the last time the abortion issue is challenged.
Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law