Supreme Court Strikes Down Texas TRAP Laws

Supreme Court Strikes Down Texas TRAP Laws June 27, 2016

Color me shocked. I would have bet a significant amount of money that the Supreme Court would deadlock 4-4 in Whole Women’s Health v Hellerstedt, the case challenging Texas’ anti-choice TRAP laws, but the ruling was 5-3 striking down those restrictions. The importance of this case cannot be overstated.


A 4-4 deadlock would have left the 5th Circuit Court of Appeals ruling, which upheld those restrictions, in place. The specific restrictions in this case were a requirement that all doctors at clinics that perform abortions have admitting privileges to a local hospital and a requirement that they meet all of the same medical standards as an outpatient surgical center. Those restrictions are so onerous that they have already resulted in the closing down of a large number of clinics in the state.

A 5-3 ruling means that Justice Kennedy finally found a regulation of abortion that constituted the “undue burden” that he said in Planned Parenthood v Casey (1992) was unconstitutional. He wrote the opinion in that case while still upholding the restrictions that Pennsylvania had placed on a woman’s right to choose, but apparently these specific restrictions went too far for him because they resulted in making abortions all but unavailable to poor women in Texas (and around the country, where many similar laws have been passed). The court said:

Based on the parties’ stipulations, expert depositions, and expert and other trial testimony, the District Court made extensive findings, including, but not limited to: as the admitting-privileges requirement
began to be enforced, the number of facilities providing abortions dropped in half, from about 40 to about 20; this decrease in geographical distribution means that the number of women of reproductive age living more than 50 miles from a clinic has doubled, the number living more than 100 miles away has increased by 150%, the number living more than 150 miles away by more than 350%, and the number living more than 200 miles away by about 2,800%; the number of facilities would drop to seven or eight if the surgical-center provision took effect, and those remaining facilities would see a significant increase in patient traffic; facilities would remain only in five metropolitan
areas; before H. B. 2’s passage, abortion was an extremely safe procedure with very low rates of complications and virtually no deaths; it was also safer than many more common procedures not subject to the same level of regulation; and the cost of compliance with the surgical-center requirement would most likely exceed $1.5 million to $3 million per clinic. The court enjoined enforcement of the provisions, holding that the surgical-center requirement imposed an undue burden on the right of women in Texas to seek previability abortions; that, together with that requirement, the admitting privileges requirement imposed an undue burden in the Rio Grande Valley, El Paso, and West Texas; and that the provisions together created an “impermissible obstacle as applied to all women seeking a previability abortion.”…

Both the admitting-privileges and the surgical-center requirements place a substantial obstacle in the path of women seeking a previability abortion, constitute an undue burden on abortion access, and thus violate the Constitution…

The record contains adequate legal and factual support for the District Court’s conclusion that the admitting-privileges requirement imposes an “undue burden” on a woman’s right to choose. The requirement’s purpose is to help ensure that women have easy access to a hospital should complications arise during an abortion procedure, but the District Court, relying on evidence showing extremely low rates of serious complications before H. B. 2’s passage, found no significant health-related problem for the new law to cure. The State’s record evidence, in contrast, does not show how the new law advanced the State’s legitimate interest in protecting women’s health when compared to the prior law, which required providers to have a “working arrangement” with doctors who had admitting privileges.

At the same time, the record evidence indicates that the requirement places a “substantial obstacle” in a woman’s path to abortion. The dramatic drop in the number of clinics means fewer doctors, longer waiting times, and increased crowding. It also means a significant increase in the distance women of reproductive age live from an abortion clinic. Increased driving distances do not always constitute an “undue burden,” but they are an additional burden, which, when taken together with others caused by the closings, and when viewed in light of the virtual absence of any health benefit, help support the District Court’s “undue burden” conclusion.

The surgical-center requirement also 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. Before this requirement was enacted, Texas law required abortion facilities to meet a host of health and safety requirements
that were policed by inspections and enforced through administrative, civil, and criminal penalties. Record evidence shows that the new provision imposes a number of additional requirements that are generally unnecessary in the abortion clinic context; that it provides no benefit when complications arise in the context of a medical
abortion, which would generally occur after a patient has left the facility; that abortions taking place in abortion facilities are safer than common procedures that occur in outside clinics not subject to Texas’ surgical-center requirements; and that Texas has waived no part of the requirement for any abortion clinics as it has done for nearly two-thirds of other covered facilities. This evidence, along with the absence of any contrary evidence, supports the District Court’s conclusions, including its ultimate legal conclusion that requirement is not necessary. At the same time, the record provides adequate evidentiary support for the District Court’s conclusion that the requirement places a substantial obstacle in the path of women seeking an abortion.

The majority opinion was written by Justice Breyer and joined by Justices Kennedy, Ginsburg, Kagan and Sotomayor. Justice Ginsburg also wrote a separate concurring opinion. You can read the full ruling here.

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