SCOTUS strikes down Texas abortion TRAP laws; will affect other states’ TRAP laws


AbortionProtestorsThe anti-abortion “Forced Birther” religious zealots have for years pursued a strategy of closing off access to safe, legal abortions through Targeted Regulation of Abortion Providers (TRAP) Laws: TRAP laws require that abortions be performed in far more complicated and expensive facilities than are necessary to ensure the provision of safe procedures, such as in ambulatory surgical facilities. Another example is TRAP laws requiring that physicians who perform abortions have admitting privileges in a local hospital, a requirement that is not medically justified and severely reduces women’s access to abortion services.

The goal of their strategy is, “if we can’t overturn Roe v. Wade directly, we can at least impose onerous restrictions that will make it as hard as possible for women to have access to safe, legal abortions,” which renders abortion a legal right in name only.

Numerous red states, including Arizona, have passed TRAP laws in recent years. The most restrictive laws was the TRAP law passed by the state of Texas. The anti-abortion “Forced Birther” religious zealots believed that this law was the vehicle for the conservative activist justices of the U.S. Supreme Court to greatly curtail the constitutional right to abortion in Roe v. Wade.

They badly miscalculated. Supreme Court Strikes Down Texas Abortion Restrictions:

The U.S. Supreme Court on Monday struck down (.pdf) parts of a restrictive Texas law that could have reduced the number of abortion clinics in the state to about 10 from what was once a high of roughly 40.

The 5-to-3 decision was the court’s most sweeping statement on abortion rights since Planned Parenthood v. Casey in 1992. It applied a skeptical and exacting version of that decision’s “undue burden” standard to find that the restrictions in Texas went too far.

The decision on Monday means that similar restrictions in other states are most likely also unconstitutional, and it imperils many other kinds of restrictions on abortion.

Note: Arizona’s abortion restrictions are being challenged in the federal courts. This opinion further undermines the constitutionality and legality of Arizona’s abortion restrictions.

Justice Stephen G. Breyer wrote the majority opinion, 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.

The decision concerned two parts of a Texas law that imposed strict requirements on abortion providers. It was passed by the Republican-dominated Texas Legislature and signed into law in July 2013 by Rick Perry, the governor at the time.

One part of the law requires all clinics in the state to meet the standards for ambulatory surgical centers, including regulations concerning buildings, equipment and staffing. The other requires doctors performing abortions to have admitting privileges at a nearby hospital.

“We conclude,” Justice Breyer wrote, “that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes. Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, and each violates the federal Constitution.”

Justice Breyer said the appeals court’s approach was at odds with the proper application of the undue-burden standard. The Casey decision, he said, “requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.”

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The majority opinion considered whether the claimed benefits of the restrictions outweighed the burdens they placed on a constitutional right. Justice Breyer wrote that there was no evidence that the admitting-privileges requirement “would have helped even one woman obtain better treatment.”

At the same time, he wrote, there was good evidence that the admitting-privileges requirement caused the number of abortion clinics in Texas to drop from 40 to 20.

Justice Breyer wrote that the requirement that abortion clinics meet the demanding and elaborate standards for ambulatory surgical centers also did more harm than good.

“Abortions taking place in an abortion facility are safe — indeed, safer than numerous procedures that take place outside hospitals and to which Texas does not apply its surgical-center requirements,” he wrote, reviewing the evidence. “Nationwide, childbirth is 14 times more likely than abortion to result in death, but Texas law allows a midwife to oversee childbirth in the patient’s own home.”

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The clinics challenging the law said it has already caused about half of the state’s 41 abortion clinics to close. If the contested provisions had taken full effect, they said, the number of clinics would again be cut in half.

The remaining Texas clinics would have been clustered in four metropolitan areas: Austin, Dallas-Fort Worth, Houston and San Antonio. “None is located west or south of San Antonio, a vast geographic area that is larger than California,” a brief for the clinics said. An appeals court did allow a partial exemption for a clinic in McAllen, the brief added, but “imposed limitations on the clinic’s operational capacity that would severely restrict its ability to provide abortions.”

Justice Breyer, announcing the majority opinion in the hushed Supreme Court chamber, said that the requirements in the Texas statute “are not consistent with the constitutional standard set forth in Casey,” and were, therefore, both unconstitutional.

How Access to Abortion Will Be Affected:

The Supreme Court on Monday struck down critical provisions of a Texas abortion law that had forced half of the state’s abortion clinics to close and threatened half of the remaining 20 clinics with closure. The sweeping ruling means similar laws in dozens of other states now are likely unconstitutional. Here is the status of access to legal abortion across the states.

Screenshot from 2016-06-27 10:58:03

The court struck down two important provisions in the Texas law, passed in the name of women’s health, but which major medical groups have said do not improve patient safety. One provision required stand-alone clinics, even those that perform only first-term abortions, to meet the standards of walk-in surgery clinics.

Screenshot from 2016-06-27 10:48:52

The second required that doctors who perform abortions have admitting privileges at a nearby hospital. Here are the states that have passed similar laws.

Screenshot from 2016-06-27 10:50:12

Before the ruling, United States Courts of Appeals had adopted different interpretations of the Casey undue-burden standard, resulting in a legal patchwork on abortion across the country. In its ruling upholding the Texas provisions, the Court of Appeals for the Fifth Circuit said it was not the courts’ role to judge medical necessity. The Supreme Court rejected that argument forcefully.

Instead, the court said medical evidence must be weighed against burdens, a holding similar to that of the Seventh Circuit, which struck down Wisconsin’s admitting-privilege law because the state could not demonstrate the need for it. In the Ninth Circuit, the court stayed enforcement of an Arizona law on similar grounds. Abortion clinics are far more common in those two circuits than in the Fifth Circuit.

What impact will the ruling have on other states? Kansas, Oklahoma and Wisconsin all have current laws blocked by courts. In the South, courts have also blocked admitting-privileges laws in Alabama, Arkansas, Louisiana and Mississippi. The laws could have wiped out all but a handful of clinics between Georgia and Texas.

Ian Millhiser at Think Progress adds, The Supreme Court’s Abortion Decision Is An Unmitigated Disaster For Abortion Opponents:

Whole Woman’s Health v. Hellerstedt is a beat down of Texas’ anti-abortion law HB 2. Justice Stephen Breyer’s majority opinion piles facts upon evidence upon statistics to demolish Texas’ supposed justification for the law. At one point, Breyer even damns the law with words uttered by Texas’ own attorney. By the end of the opinion, it is surprising that Breyer did not finish with the two words “HULK SMASH!”

Even more significantly, Whole Woman’s Health leaves the right to an abortion on much stronger footing than it stood on before this decision was handed down. It’s difficult to exaggerate just how awesomely anti-abortion advocates erred in urging Texas to pass HB 2 in the first place. This law was supposed to provide those advocates with a vehicle to drain what life remains in Roe v. Wade. Instead, reproductive freedom is stronger today than it has been at any point in nearly a decade.

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The question in Whole Woman’s Health was whether a state could enact a sham health law that did little to advance women’s health and a great deal to shut down abortion clinics, and then claim that enough “medical and scientific uncertainty” exists to permit such a law to stand.

Justice Breyer answers this question with a firm, unambigious “no.” Quoting from the Court’s 1992 opinion in Planned Parenthood v. Casey, Breyer writes that “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right,” and therefore are unconstitutional.

In response to a federal appeals court, which bought the argument that “medical uncertainty underlying a statute is for resolution by legislatures, not the courts,” Breyer is curt and dismissive. “The Court of Appeals’ articulation of the relevant standard is incorrect,” he writes, adding that Casey “requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.”

On the surface, Breyer’s citations to Casey suggest that he is doing nothing more than applying clearly established law — and this certainly would have been the case prior to Carhardt. But in  Gonzales v. Carhardt (2007) [a 5-4 Court held that lawmakers enjoy “wide discretion to pass legislation in areas where there is medical and scientific uncertainty”] genuinely did raise uncertainty about how much deference the Supreme Court was prepared to give lawmakers who wish to shut down abortion clinics. And it appeared to open the door to laws like HB 2. Breyer’s opinion slams that door shut, bolts it, places a bar over it, and pushes a sofa behind the door.

Some of the the most Roe-undermining language ever to appear in a Supreme Court opinion has now been mostly neutered.

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So this is a big loss for opponents of the right to choose and an enormous strategic blunder by some of the most sophisticated thinkers in the anti-abortion movement. HB 2 was the brainchild of Americans United for Life, a “legislation mill” that drafts anti-abortion bills that can be enacted by sympathetic state lawmakers. The group brags its goal is to overrule Roe “through deliberate, legal strategies that accumulate victories, build momentum, and restore a culture of life.”

AUL is a formidable opponent of abortion rights, but their most high-profile effort to strike at Roe has now ended in disaster for them. In pushing the limits of Carhardt, they have destroyed one of the most powerful weapons they had in the war on abortion.

UPDATE: The ruling struck down the law that caused Texas state senator Wendy Davis to put on those famous tennis shoes and launch her historic filibuster. Ultimately she failed to stop passage of the bill, but the Supreme Court just made her point. Wendy Davis: ‘I feel vindicated’ on behalf of women.

UPDATE: On Tuesday, the Supreme Court refused to review further restrictions on doctors who perform abortions in Mississippi and Wisconsin, marking the first ripple effect from Monday’s landmark ruling that overturned two abortion restrictions in Texas. The Texas SCOTUS Decision Is Already Toppling Other Abortion Restrictions.


  1. Ironic for the Neanderthal Herrod, her ban of zealots and blind followers in the legislature, three female members of the court have put them on the wrong side of history—again.

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