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By Ariane de Vogue and Dan Berman
WASHINGTON — 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.
Justice Stephen Breyer wrote the majority opinion, which was joined in full by Justice Anthony Kennedy, considered the swing vote on the abortion issue.
“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.”
The ruling will have major reverberations on the presidential election, where the fate of the Supreme Court has been front-and-center after the death of Justice Antonin Scalia in February. Senate Republicans have refused to act on President Barack Obama’s nomination of Judge Merrick Garland, leaving the court with eight justices.
Hillary Clinton immediately praised the ruling.
“SCOTUS’s decision is a victory for women in Texas and across America. Safe abortion should be a right—not just on paper, but in reality. -H”
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.”
Kennedy the swing vote
In 1992, the court re-affirmed the landmark Roe v Wade ruling in Planned Parenthood v Casey, but it said that states could impose restrictions as long as they didn’t impose an undue burden on the woman.
Kennedy, one of the authors of Casey, then disappointed supporters of abortion rights when he upheld the federal partial birth abortion ban in 2007. All eyes were on him for this case to see if he would take the opportunity to clarify Casey. Instead, as the most senior justice in the majority it was his choice to allow Breyer to write.
“The fact that Justice Kennedy gave away this opinion assignment and didn’t write separately is striking,” said Steve Vladeck, CNN contributor and professor of law at American University Washington College of Law. “Kennedy has not only been the swing vote on abortion issues since he joined the Court in 1988, but he has written an opinion in virtually every major abortion case during that time, including the majority opinion in the Court’s controversial 2007 decision upholding the federal ban on so-called ‘partial-birth’ abortions.
“It’s not stunning that he sided with the liberals in striking down the Texas law in this case, but it is stunning that he didn’t feel the need to explain why,” Vladeck added.
Strong dissents from Thomas, Alito
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.”
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.
State Solicitor General Scott Keller argued in court papers that if the court were to uphold the law, an abortion clinic “will remain open in each area where one will close, meaning that over 90% of Texas women of reproductive age will live within 150 miles of an open abortion clinic.”
A federal appeals court upheld the Texas law in 2015, and last spring a majority of the Supreme Court voted to stay that ruling pending appeal. The four conservative justices at the time: John Roberts, along with Thomas, Alito and the late Justice Antonin Scalia, publicly noted that they would have denied the stay.