Supreme Court: Texas abortion law creates ‘undue burden’

Abortion | Majority of justices rule regulations are an unnecessary obstacle to abortion, citing no authority but themselves
by Emily Belz
Posted 6/27/16, 02:09 pm

Republican-appointed Justice Anthony Kennedy affirmed his legacy of protecting Roe v. Wade today by providing the decisive vote to strike two provisions of a Texas law regulating abortion centers. Kennedy also provided the decisive vote in Planned Parenthood v. Casey, a 1992 ruling that upheld Roe.

The ruling from Kennedy and the liberals—Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan—said abortion was safer than childbirth, long a talking point of abortion groups like Planned Parenthood. Kennedy’s vote meant that the late Justice Antonin Scalia, had he lived through this term, would not have changed the 5-3 outcome.

Two provisions in the Texas law, H.B. 2, were at issue: One required abortion centers to meet ambulatory surgical center (ASC) standards and another required abortionists to have admitting privileges at a nearby hospital. 

The Texas legislature passed the measures in response to the conviction of Pennsylvania abortionist Kermit Gosnell, whose center was a horror scene aside from the abortions he performed. A Philadelphia jury convicted Gosnell of first-degree murder in the deaths of three babies born alive and manslaughter in the death of a patient. The grand jury investigating that case recommended states require abortion centers to meet ASC standards. 

“Gosnell’s behavior was terribly wrong,” Breyer wrote for the majority. “But there is no reason to believe that an extra layer of regulation would have affected that behavior. Determined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations.”

Justice Samuel Alito, writing a dissent joined by Chief Justice John Roberts and Justice Clarence Thomas, said a similar law in Pennsylvania might have shut down Gosnell’s facility before he could commit his crimes. 

“If there were any similarly unsafe facilities in Texas, H.B. 2 was clearly intended to put them out of business,” Alito wrote.

But the Supreme Court second-guessed the Texas legislature here, tossing out the state’s assertion that the regulations were medically necessary and ruling that judicial precedent required removing obstacles from women seeking abortions. Pro-life lawyers anticipated this loss because if the court had been tied, the justices likely would have announced that soon after the March arguments in the case. 

Nevertheless, the ruling sets a mess of new legal standards for state abortion regulations, and Justice Clarence Thomas, in a clear-eyed dissent, said it will “surely mystify lower courts for years to come.” 

“As the court applies whatever standard it likes to any given case, nothing but empty words separates our constitutional decisions from judicial fiat,” Thomas wrote.

At the arguments in this case in March, Alito wondered whether the Supreme Court was “qualified” to determine abortion’s medical risks and what would mitigate them. Now the answer is clear: The court believes it is qualified. 

Typically in rulings, the Supreme Court cites and interprets relevant laws on the issue at hand. But on abortion there are no federal laws to cite: The Supreme Court is the author of legalized abortion. The lack of statutory authority in striking a state law reveals the court’s legislative bent over the last 40 years on this issue.

Citing only its own precedents, the court wrote that states may “insure maximum safety for the patient” (Roe v. Wade) but must not “place a substantial obstacle in the path of a woman’s choice” or “impose an undue burden on the right” to an abortion (Planned Parenthood v. Casey).

Thomas’ dissent highlights how the court is making up its abortion jurisprudence as it goes along. The decision “perpetuates the court’s habit of applying different rules to different constitutional rights—especially the putative right to abortion.”

“Our law is now so riddled with special exceptions for special rights that our decisions deliver neither predictability nor the promise of a judiciary bound by the rule of law,” Thomas wrote. 

Much of the ruling focused on facts. Did abortion facilities shut down as a result of the new law? Could the remaining facilities provide a sufficient number of abortions to meet demand? The Supreme Court disregarded the facts from the 5th U.S. Circuit Court of Appeals, which upheld H.B. 2, instead embracing the testimonies from the lower district court, which struck down the law. The Supreme Court concluded that H.B. 2 “provides few, if any, health benefits for women.”

This ruling also imposed a new, higher constitutional bar for state laws regulating abortion. In other words, regulation of a business would have less legal standards to meet than regulation of an abortion facility.

“The state’s burden has been ratcheted to a level that has not applied for a quarter century,” Thomas wrote.

One tiny silver lining for pro-lifers in Breyer’s ruling: He reiterated the Casey precedent that the state may regulate abortion when an infant becomes viable.

“[W]e now use ‘viability’ as the relevant point at which a state may begin limiting women’s access to abortion for reasons unrelated to maternal health,” the court wrote.

This was the final day of the Supreme Court’s term. The court will begin sitting again in October.

Emily Belz

Emily is a senior reporter for WORLD Magazine. She is a World Journalism Institute graduate and previously reported for the The New York Daily News, The Indianapolis Star, and Philanthropy magazine. Emily resides in New York City. Follow her on Twitter @emlybelz.

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  •  austinbeartux's picture
    Posted: Mon, 06/27/2016 02:50 pm

    So, so frustrating.

    I'm not a psychologist, but it seems to me the very fundamental, core focus of pro-abortion people is: *self*.  I'm not financially able to provide, I'm not at the right age, I didn't plan on this, I don't want this baby, I was foolish and didn't use contraception, I was drunk--I, I, I, me, me, me.  I don't care about this "thing" inside me.  I don't want "it."  And they're willing to commit murder to benefit "me."

    The tool pro-choice folks use is an invention called "viability."  It's 100% arbitrary, contrived, and diabolic.  Check out Wikipedia's page on fetal viability:


    "viability is the potential of the fetus to survive outside the uterus after birth, natural or induced, when supported by up-to-date medicine."  Another definition is: "the expectation that a fetus has an equal chance of surviving and not surviving outside his or her mother's womb."

    Think about the insanity of their thinking: BEFORE viability, the fetus is just a "thing" and not a precious baby.  It has 0 value.  It's just a blob of organs, blood, bone, etc.  They think it's OK for abortion Dr's to crush and suck the baby out.  However, AFTER this arbitary, contrived, and diabolic "viability" milestone, this blob of burden magically turns into a beautiful baby boy or girl.  How can anyone in the world subscribe to this way of thinking?????

    God have mercy on us.

  •  Brendan Bossard's picture
    Brendan Bossard
    Posted: Mon, 06/27/2016 09:22 pm

    “Gosnell’s behavior was terribly wrong,” Breyer wrote for the majority. “But there is no reason to believe that an extra layer of regulation would have affected that behavior. Determined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations.”

    Now, that is a quote that we need to keep in reserve for future use!

    But more to the point, we will pay a heavy price for our practice of child sacrifice.  The Civil War was God's judgment for our iniquitous treatment of an entire race of persons.  We still suffer the after-effects today.  I fear what will happen to us if our nation does not repent of its treatment of in-utero children.

  • Janet B
    Posted: Thu, 06/30/2016 01:15 pm

    My husband and I caught the inference, as well.  Let's use that quote when it comes to "gun control" laws, shall we?

  • Steve Shive
    Posted: Tue, 06/28/2016 05:55 am

    What standards do states set to regulate surgi-centers that perform procedures that used to be done in a hospital. I do not know but I assume that they must meet a high standard of hospital grade sterile technique, physician qualification and other related important oversight. If so, and I'd love to hear more about this, why is abortion any different? Aside from the obvious horrific purpose of the procedure.

  •  austinbeartux's picture
    Posted: Tue, 06/28/2016 07:22 am


    I may be wrong, but I live in Austin, TX and on the local news last night they implied that regular surgi-centers have *no* standards--*no* oversight to ensure the patient's safety.  Whatever standards or precautions are taken are solely the responsibility of the business.

    Seems pretty dangerous to me.

  •  austinbeartux's picture
    Posted: Tue, 06/28/2016 01:07 pm

    Check this story out:

    Somehow, in this Twilight Zone we live in, this would have essentially been condoned by the left if it had just happened 20 weeks prior.

  •  jrmbasso's picture
    Posted: Tue, 06/28/2016 10:31 am

    Thank you Emily Belz. After inventing law to justify legalizing abortion on demand, SCOTUS now proceeds to invent medical expertise on what is required to 'safely' perform one. Can back-alley abortion facilities be far behind?

  •  William Peck 1958's picture
    William Peck 1958
    Posted: Tue, 06/28/2016 11:36 am

    This IS the moderan version of back-alley abortions. Slavery is "different" than it was back in the 1700's and 1800's, but it still exists today, take a look at the inner cities.

  •  William Peck 1958's picture
    William Peck 1958
    Posted: Tue, 06/28/2016 11:40 am

    Is the court saying that ANY barrier to abortion is an undue burden ? Or are SOME standards ok ? 

  • MTJanet
    Posted: Tue, 06/28/2016 10:10 pm

    Once again, the ungodly have confirmed that they want abortion under any and all conditions.  These were reasonable medical concerns, and only unreasoning people who want their sin could have come up with obstacles to them.  

  • JD
    Posted: Fri, 07/01/2016 10:56 am

    The abortion industry started. "Because women were dying from back alley abortions, they needed a safe medical environment for their procedure." This was the lie feed to the people for the passing of Roe vs. Wade. I know it was more involved and convoluted than that, but now they say abortions are so safe we don't need these regulations? God forgive us for our rejection of your sovereignty.