Supreme Court strikes down Texas Abortion Clinic Safety Law

June 29, 2016

Washington (CNN)  In a dramatic ruling, the Supreme Court on Monday threw out a Texas abortion access law in a victory to supporters of abortion rights who argued it would have shuttered all but a handful of clinics in the state.


The 5-3 ruling is the most significant decision from the Supreme Court on abortion in two decades and could serve to deter other states from passing so-called "clinic shutdown" laws.


There were two provisions of the law at issue. The first said that doctors have to have local admitting privileges at nearby hospitals, the second says that the clinics have to upgrade their facilities to hospital-like standards.


Critics say if the 2013 law, known as H.B. 2, is allowed to go into effect it could shutter all but a handful of clinics in a state with 5.4 million women of reproductive age.


Texas countered that the law was passed in response to the Kermit Gosnell scandal. The Pennsylvania man was convicted in 2013 of first-degree murder for killing babies that were born alive in his clinic.

    In joining with the liberal justices, perennial swing vote Justice Anthony Kennedy helped deliver a victory to abortion rights activists and signaled the court's majority in their favor could continue regardless of the presidential election and the filling of the empty seat on the bench left by the death of conservative Justice Antonin Scalia.


    Justice Stephen Breyer wrote the majority opinion, which was joined in full by Kennedy. Breyer wrote that despite arguments that the restrictions were designed to protect women's health, the reality is that they merely amounted to burdening women who seek abortions.


    "There was no significant health-related problem that the new law helped to cure," Breyer wrote. "We agree with the District Court 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."


    Justice Ruth Bader Ginsburg joined Breyer's opinion and wrote a brief concurring opinion, which focused on what she called women in "desperate circumstances."


    "When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety," she wrote.


    Texas Gov. Greg Abbott decried the ruling. "The decision erodes States' lawmaking authority to safeguard the health and safety of women and subjects more innocent life to being lost," the Republican governor said in a statement. "Texas' goal is to protect innocent life, while ensuring the highest health and safety standards for women."


    Justices Clarence Thomas and Samuel Alito wrote dissents.


    Thomas wrote a bitter dissent for himself, accusing the court of eroding the Constitution.


    "The Court has simultaneously transformed judicially created rights like the right to abortion into preferred constitutional rights, while disfavoring many of the rights actually enumerated in the Constitution," Thomas wrote. "But our Constitution renounces the notion that some constitutional rights are more equal than others. ... A law either infringes a constitutional right, or not; there is no room for the judiciary to invent tolerable degrees of encroachment. Unless the Court abides by one set of rules to adjudicate constitutional rights, it will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear."


    While Thomas would have upheld the laws, in Alito's dissent, joined by Chief Justice John Roberts, the justices would have sent the laws back to the lower courts to be decided after more evidence was presented.


    Alito accused the justices in the majority of fabricating claims for the attorneys in the case.


    "Determined to strike down two provisions of a new Texas abortion statute in all of their applications, the Court simply disregards basic rules that apply in all other cases," Alito wrote. "The Court favors petitioners with a victory that they did not have the audacity to seek."


    Alito thought the two provisions of the law should have been dealt with separately and he condemns the majority for failing to do that analysis.


    "If some applications are unconstitutional, the severability clause plainly requires that those applications be severed and that the rest be left intact....How can the Court possibly escape this painfully obvious conclusion. Its main argument is that it need not honor the severability provision because doing so would be too burdensome."


    Carrie Severino, chief counsel and policy director of the Judicial Crisis Network and former clerk to Thomas, said the ruling "made clear that some constitutional rights are more equal than others." In a statement, she added that "by throwing out the regular legal rules in order to carry water for the abortion industry, the Court has further threatened its own legitimacy. It's no wonder the Supreme Court is suffering record levels of disapproval with the American people."


    By Ariane de Vogue, Tal Kopan and Dan Berman, CNN


    Updated 6:15 PM ET, Mon June 27, 2016



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