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Beating back an undue burden on legal abortions

Pro-choice activists celebrated on the steps of the Supreme Court on Monday in Washington, DC.Pete Marovich/Getty Images/Getty

The US Supreme Court’s vote Monday that voided Texas’ oppressive restrictions on abortion clinics is rightly being hailed as the most significant abortion rights ruling in a quarter century. Supporters of the Texas law, known as H.B. 2, had insisted that its intent was to protect women’s safety, but five of the Supreme Court’s eight justices recognized the legislation’s true purpose: to make it as difficult as possible for women to exercise their right to abortion.

Passed in 2013, the law required doctors who perform abortions to gain admitting privileges at a nearby hospital, a formal designation that is not medically necessary. It also mandated that clinics meet the same specifications as hospital surgery centers — an expensive and unwarranted proposition. In her concurring opinion, Justice Ruth Bader Ginsburg wrote, “Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory-surgical-center or hospital admitting-privileges requirements.” Ginsburg also made a point that, sadly, still needs reiterating in 2016: Limiting access to licensed clinics makes abortion less safe, because some women “may resort to unlicensed rogue practitioners.” Since the Texas law was enacted in 2013, about half of the state’s 41 clinics have shut their doors. If it had been allowed to remain in effect, more would have closed.


In addition, the ruling has ramifications for states that have mimicked the Texas law — those regulations almost certainly will now be deemed invalid. That doesn’t mean new legislation aimed at delaying or otherwise restricting access to abortion won’t pop up, igniting lengthy legal battles that could wend their way to the US Supreme Court. Even in liberal Massachusetts, there’s reason to be on guard, said Christian Miron, deputy director of the advocacy group NARAL Pro-Choice Massachusetts. “No state, whether it’s Texas or Massachusetts, is immune from anti-choice attempts,” said Miron. He criticized Governor Charlie Baker for “refusing to guarantee” that his appointments to the state’s Supreme Judicial Court will uphold abortion rights.

The H.B. 2 decision also will reverberate throughout the presidential campaign. Because of the 5-3 margin, the vote of conservative Antonin Scalia, who died in February, wouldn’t have altered the outcome. But besides picking Scalia’s replacement, the next president likely will nominate two or three other justices, dramatically reshaping the court. Democrat Hillary Clinton said on Monday that the next president must appoint justices who recognize Roe v. Wade as settled law. Republican Donald Trump, whose position on abortion is as poorly formed as his views on any number of issues, recently said he would nominate “pro-life” judges.


Monday’s decision puts abortion opponents everywhere on notice: Disingenuous safety concerns can’t be used to block reasonable access to abortion services. As Justice Stephen Breyer wrote in the court’s majority opinion, an “undue burden” on a constitutionally protected right has been lifted. That it took a ruling from the highest court in the land to insist on this fact shows just how fragile the right to abortion access remains.