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Supreme Court strikes down Texas abortion restrictions

Pro-choice activists were seen outside the Supreme Court. JIM LO SCALZO/European Pressphoto Agency

WASHINGTON — The Supreme Court on Monday struck down parts of a restrictive Texas law that could have reduced the number of abortion clinics in the state to about 10 from what was once a high of roughly 40.

The 5-to-3 decision was the court’s most sweeping statement on abortion rights since Planned Parenthood v. Casey in 1992. It applied a skeptical and exacting version of that decision’s “undue burden” standard to find that the restrictions in Texas went too far.

The decision Monday means that similar restrictions in other states are probably also unconstitutional, and it imperils many other kinds of restrictions on abortion.


Justice Stephen G. Breyer wrote the majority opinion, joined by Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Chief Justice John Roberts and Justices Clarence Thomas and Samuel A. Alito Jr. dissented.

The decision concerned two parts of a Texas law that imposes strict requirements on abortion providers. It was passed by the Republican-dominated Texas Legislature and signed into law in July 2013 by Rick Perry, the governor at the time.

One part of the law requires all clinics in the state to meet the standards for ambulatory surgical centers, including regulations concerning buildings, equipment, and staffing.

The other requires doctors performing abortions to have admitting privileges at a nearby hospital.

“We conclude,” Breyer wrote, “that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes. Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, and each violates the Federal Constitution.”

Last June, the US Court of Appeals for the Fifth Circuit in New Orleans largely upheld the contested provisions of the Texas law, saying it had to accept lawmakers’ assertions about the health benefits of abortion restrictions. The appeals court ruled that the law, with minor exceptions, did not place an undue burden on the right to abortion.


Breyer said the appeals court’s approach was at odds with the proper application of the undue-burden standard. The Casey decision, he said, “requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.”

In dissent, Thomas said the majority opinion “reimagines the undue-burden standard,” creating a “benefits-and-burdens balancing test.” He said courts should resolve conflicting positions by deferring to legislatures.

“Today’s opinion,” Thomas wrote, “does resemble Casey in one respect: After disregarding significant aspects of the court’s prior jurisprudence, the majority applies the undue-burden standard in a way that will surely mystify lower courts for years to come.”

The majority opinion considered whether the claimed benefits of the restrictions outweighed the burdens they placed on a constitutional right. Breyer wrote that there was no evidence that the admitting-privileges requirement “would have helped even one woman obtain better treatment.”

At the same time, he wrote, there was good evidence that the admitting-privileges requirement caused the number of abortion clinics in Texas to drop from 40 to 20.

In a second dissent, Alito, joined by Roberts and Thomas, said the causal link between the law and the closures was unproved. Withdrawal of state funds, a decline in the demand for abortions, and doctors’ retirements may have played a role, Alito wrote.

Breyer wrote that the requirement that abortion clinics meet the demanding and elaborate standards for ambulatory surgical centers also did more harm than good.


“Abortions taking place in an abortion facility are safe — indeed, safer than numerous procedures that take place outside hospitals and to which Texas does not apply its surgical-center requirements,” he wrote, reviewing the evidence. “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.”

In dissent, Alito said there was good reason to think that the restrictions were meant to and did protect women.

“The law was one of many enacted by states in the wake of the Kermit Gosnell scandal, in which a physician who ran an abortion clinic in Philadelphia was convicted for the first-degree murder of three infants who were born alive and for the manslaughter of a patient,” Alito wrote.

Breyer acknowledged that “Gosnell’s behavior was terribly wrong.”

“But,” he added, “there is no reason to believe that an extra layer of regulation would have affected that behavior.”

The clinics challenging the law said it has already caused about half of the state’s 41 abortion clinics to close. If the contested provisions had taken full effect, they said, the number of clinics would again be cut in half.

The remaining Texas clinics would have been clustered in four metropolitan areas: Austin, Dallas-Fort Worth, Houston, and San Antonio. “None is located west or south of San Antonio, a vast geographic area that is larger than California,” a brief for the clinics said.


An appeals court did allow a partial exemption for a clinic in McAllen, the brief added, but “imposed limitations on the clinic’s operational capacity that would severely restrict its ability to provide abortions.”

Breyer, announcing the majority opinion in the hushed Supreme Court chamber, said the requirements in the Texas statute “are not consistent with the constitutional standard set forth in Casey,” and are therefore both unconstitutional.

Alito read an extended dissent from the bench, a sign of deep disagreement.

“We are supposed to be a neutral court of law,” he said, outlining what he conceded were “dry and technical” points of legal doctrine that he argued should have precluded the petitioners from presenting the challenge in the first place. “There is no justification for treating abortion cases differently from other cases.”

Attorney General Ken Paxton of Texas said the law ‘‘was 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.’’

Nancy Northup, president of the Center for Reproductive Rights, which represented the clinics, said, ‘‘The Supreme Court sent a loud and clear message that politicians cannot use deceptive means to shut down abortion clinics.’’