This article originally appeared on the Pittsburgh Post-Gazette by Marie McCullough on June 28th, 2016.
In a big win for abortion-rights advocates, the U.S. Supreme Court on Monday struck down a Texas abortion law that required clinics to meet hospital-like surgical standards and doctors to get admitting privileges at a local hospital.
The 5-3 ruling was the most significant since Planned Parenthood v. Casey in 1992, which set the precedent that states could impose abortion restrictions as long as they did not create an “undue burden” on women seeking abortions. An undue burden existed if a restriction’s “purpose or effect is to place substantial obstacles” in the path of women who want an abortion, including “unnecessary health regulations.”
The Texas law led to the closure of about half of the 40 abortion clinics there, and the number was expected to fall further if the law was upheld, leaving about 10 clinics in a state with 5 million women of childbearing age.
Monday’s ruling in Whole Woman’s Health v. Hellerstedt may have implications for numerous other states. Pennsylvania is among five states — along with Michigan, Missouri, Tennessee and Virginia — that require abortion facilities to be on a par medically with outpatient surgical centers, and four states require hospital admitting privileges, according to the Guttmacher Institute, a research center that supports abortion rights. Many more states impose varying restrictions.
The case divided the high court along ideological lines, with Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan supporting the opinion written by Justice Stephen Breyer. Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito dissented.
The Texas law 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 Stephen G. Breyer wrote for the court.
He was joined by Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. dissented.
“I’m pleased that the court put teeth into Planned Parenthood v. Casey,” said Barnard College professor Kathryn Kolbert, a public interest lawyer who argued on behalf of Planned Parenthood in that landmark case.
Monday’s ruling “came out exactly how I thought it would,” she said. “Justice Kennedy wrote part of Casey; he was applying the law he helped to create. And Justice Breyer has always been supportive of abortion rights.”
Both sides in the Texas case cited imprisoned West Philadelphia abortion doctor Kermit Gosnell, 75, as a cautionary tale. Gosnell was convicted in 2013 of murdering three infants born alive during illegal abortions, as well as contributing to a patient’s death and running a opiate “pill mill.”
Texas officials said the abortion clinic provisions were needed to protect women’s health and avert another Gosnell incident, while abortion providers said the requirements were onerous and designed to shut them down, opening the door to rogue providers like Gosnell.
Susan Frietsche, senior staff attorney with the Philadelphia-based advocacy organization Women’s Law Project, filed a “friend of the court” brief that argued that Gosnell’s saga was a product of his decades of flagrant disregard for existing laws and lack of enforcement of those laws.
Justice Ginsberg cited Ms. Frietsche’s brief in concurring that the Texas law was unconstitutional, writing: “When a state severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners … at great risk to their health and safety.”
“I think all over the country, where these supposedly health-protective laws have been passed, there will be questions about their constitutionality,” Ms. Frietsche said. “I think everybody is going to be carefully reading this detailed ruling.”
In 2011, legislators in Pennsylvania cited Gosnell to justify passage of the controversial law requiring abortion clinics to be licensed as outpatient surgical centers. After a bitter legislative fight, Republican Gov. Tom Corbett signed the bill into law.
But in Pennsylvania, unlike Texas, state health department officials granted some waivers of certain standards — such as hospital-size elevators — at clinics’ request.
“We were able to apply for waivers, but I don’t want to say it wasn’t very burdensome and costly,” said Dayle Steinberg, president and CEO of Planned Parenthood Southeastern Pennsylvania. “We spent half a million dollars just on two clinics of ours, and the renovations did nothing to enhance patient safety.”
State Sen. Daylin Leach, D-Montgomery, said it seemed “clear and obvious” that Pennsylvania’s outpatient surgery center requirement is now unconstitutional. He said he was considering introducing legislation to repeal it.
Rep. Matt Baker (R.-Tioga), who pushed for the 2011 state law, said in an email that because Pennsylvania and Texas applied their requirements in different ways, Pennsylvania’s law “doesn’t rise to the level of unconstitutional.”
Spokespeople for Gov. Tom Wolf and Senate Republicans both said they needed more time to study the decision.
In decrying the Supreme Court ruling, anti-abortion groups insisted such laws protect women.
“Women lost today as the Supreme Court sides with the abortion industry, putting profits over women’s health and safety by opposing lifesaving regulations and medically endorsed standards of patient care,” said Clarke Forsythe, acting president of Americans United for Life.
Karen Langley of the Harrisburg Bureau contributed to this article.