by Eric J. Segall, Kathy and Lawrence Ashe Professor of Law at Georgia State University College of Law. Follow Professor Segall on Twitter @espinsegall.
On Wednesday, the Supreme Court will hear arguments in an historic abortion case involving two Texas laws that, if upheld, will make it much more difficult for poor women in Texas to obtain abortions. The death of Justice Scalia has little effect on the outcome of this case. There are likely three conservative votes to uphold the laws (Roberts, Alito, and Thomas) and four liberal votes to invalidate the laws (Ginsburg, Breyer, Sotomayor and Kagan). If Justice Kennedy votes with the liberals, the laws will be struck down 5-3 (instead of 5-4 had Scalia remained on the bench). If he votes to uphold the laws, the decision of the lower court sustaining both laws will be affirmed by a 4-4 vote (though the case would not have national implications).
One of the Texas laws requires clinics that perform abortions to have the physical plans of ambulatory surgical centers while the other requires doctors who perform abortions to have admitting privileges at a hospital within 30 miles of the clinic. Before these laws went into effect, there were over 40 clinics in Texas where women could secure a safe abortion. If these laws are upheld, the number will be less than 10. Women in West Texas will have to drive over 150 miles to obtain an abortion should the Supreme Court affirm the lower court.
The legal standard currently in effect for abortion laws is whether they pose an “undue burden” on the right to an abortion. There can be little dispute that these laws do exactly that (in fact that is their very purpose). As the Texas Solicitor General announced shortly after the laws were passed:
These laws were not enacted solely to advance the State’s interest in maternal health. They were also enacted to advance the State’s interest in promoting and protecting fetal life. A law that is enacted to advance the State’s interest in the life of the unborn need not be medically necessary to survive constitutional challenge.
Although Texas does argue that both laws further women’s health by making abortion clinics safer and by ensuring doctors have access to a hospital should something go wrong, both rationales are patently absurd. As Judge Posner held in a case striking down the same admitting privileges law in Wisconsin, and as many other folks have pointed out, abortion is a much safer medical procedure than many other outpatient procedures, including colonoscopies and liposuction, yet nether Wisconsin nor Texas requires doctors to have admitting privileges at local hospitals when performing those services.
Moreover, even if something does go wrong during an abortion, which is very rare, emergency rooms and hospitals, even in Texas, do not turn away pregnant women in distress. Texas’s real motivation for this requirement can be seen in the enormous difficulty doctors have gaining admitting privileges if they indeed perform abortions. Hospitals with religious affiliations regularly refuse to certify doctors who perform abortions. And, as Paul Waldman has pointed out, “because hospitals don't want to become embroiled in abortion politics, they regularly refuse admitting privileges to doctors who perform abortions.” Texas’s obvious motivation for this law is not to protect women’s health but to reduce the number of doctors in Texas who are licensed to perform abortions.
The ambulatory surgical center requirements are even more onerous and even more preposterous. The estimated costs for physically transforming clinics to meet those requirements, according to the petitioners in the Texas case, is between 1.5 and 2 million dollars and will result in the closing of most clinics in Texas. Yet, the benefits for women who receive abortions from the transformation would be non-existent. Moreover, the requirements of the law transform abortion clinics from places where women receive care in a warm supportive and safe environment to sterile, hospital-like facilities with all of the negative institutional characteristics that sadly are all too common in our health care system. With risky and potentially life-threatening medical procedures, perhaps those requirements make sense, but Texas has not put forward any evidence that abortion is such a procedure.
As Mike Dorf has written, Roe v. Wade and Planned Parenthood v. Casey stand for the legal proposition that, “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.” The laws at issue in Texas are both unnecessary and impose an undue burden on the right to an abortion. Women will have much less access to, and doctors will have a much harder time performing, abortions if the laws are upheld. Unless the Supreme Court is going to reverse current law and return the issue of abortion to the states, both Texas laws should be struck down and a signal sent to the rest of the country that sham anti-choice legislation passed for no purpose other than to make it harder for women to secure safe, affordable abortions will not be tolerated by our highest Court.