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The U.S. Supreme Court has struck down a Texas abortion law that was enacted in the name of protecting the health and safety of women. In a vote of 5 to 3, the court in essence declared this health and safety justification was not much more than a ruse and that the real reason was to limit access to abortion.
The decision is the most sweeping abortion ruling in nearly 25 years, and it's likely to invalidate similar provisions in at least a dozen other states. NPR's legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: The Texas law required abortion clinic doctors to have admitting privileges at a nearby hospital, and it required the clinics be designed and equipped to be mini hospitals with wide corridors, large operating rooms, advanced HVAC systems, et cetera.
Writing for the court majority, Justice Stephen Breyer said both these provisions are unconstitutional. He said they impose an undue burden on a woman's right to abortion, the very kind of obstacles specifically forbidden by the court in its last major abortion ruling in 1992. He said the regulations imposed by the state were unnecessary and counterproductive. They caused nearly half the clinics in the state to close, the result being that women were forced to drive hundreds of miles and often wait weeks to get an abortion.
The court said that nothing in the evidence of this case show that the hospital admitting privileges requirement added anything to the protocol that existed before this law was enacted. Under that protocol, doctors had arrangements to admit patients to local hospitals through other doctors who did have admitting privileges.
Indeed, Justice Breyer noted that when lawyers for Texas were asked directly at oral argument whether the state knew of a single instance in which the new law helped one woman get better treatment, the answer was that there was no evidence such a case existed.
As to the surgical centers, the court said that the law's requirements were, quote, "nearly arbitrary." For instance, the law requires even those patients seeking a medical abortion to take a pill at a surgical center even though any possible complications typically happen long after the patient has left the facility.
More to the point, the court noted that surgical abortions are among the safest procedures in the country. Childbirth which Texas allows to take place at home is 14 times more likely to result in death than an abortion, and a colonoscopy which can take place in a doctor's office has 10 times the mortality rate. Indeed the court observed that the procedure for dealing with a miscarriage is the same as an abortion, but the miscarriage procedure can be done in a doctor's office.
Abortion rights supporters were not only elated. They said the decision underlined and amplified the rights articulated in the court's last major abortion decision in 1992. Nancy Northrup is president of the Center for Reproductive Rights.
NANCY NORTHRUP: What they did today is really put the teeth into what that standard is.
TOTENBERG: Notre Dame law professor Richard Garnett, an abortion opponent, agreed.
RICHARD GARNETT: The version of the undue burden test that comes out of this I do think is significantly more demanding.
TOTENBERG: Indeed he added, it does seem that the court is no longer willing to just take the legislature's word when it says it's enacting a law to protect women's health and safety in regards to abortion. Jim Bopp, counsel for the National Right to Life Committee, was disheartened.
JIM BOPP: But I think it's just appalling.
TOTENBERG: But Cornell law professor Michael Dorf noted that the battle is not over.
MICHAEL DORF: On the one hand, it shows there are five solid votes regardless of who replaces Justice Scalia to say that abortion cannot be banned and that it can't be eroded through death by a thousand cuts. On the other hand, the justices in the majority won't be on the Supreme Court forever, and the dissenters show no sign of giving up.
TOTENBERG: Indeed Justice Samuel Alito in dissent accused the majority of bending the procedural rules of the law in a way that would not be acceptable for anything other than abortion. He was joined by Chief Justice Roberts and Justice Thomas who also wrote separately.
Alito conceded in his dissent that the Texas law did cause some clinics to close, but he said the law was intended to force unsafe facilities to close, like the notorious clinic in Pennsylvania run by Kermit Gosnell. The majority replied that the deplorable conditions in Gosnell's clinic would not have been cured by another layer of regulation since the only reason Gosnell's facility managed to survive for as long as it did was that it went uninspected for more than 15 years.
Joining Breyer in the majority were the court's three female justices and Justice Anthony Kennedy. As decisive as today's ruling would appear to be, state legislatures will likely continue to pass new abortion restrictions. Indiana Solicitor General Thomas Fisher notes an ongoing legal battle in his state.
THOMAS FISHER: We have a law that prohibits abortion in the context of, you know, a disability diagnosis.
TOTENBERG: In short, a ban when the only reason for the abortion is that the fetus would be born with a disability. For now though, the abortion wars will likely not be focused on the Supreme Court but on the presidential election campaign. Nina Totenberg, NPR News, Washington.
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