The Supreme Court ruled June 27 to throw out a Texas law making access to abortion more difficult in the state.
The move is an important win for women and their access to reproductive health care, said Susan Appleton, the Lemma Barkeloo & Phoebe Couzins Professor of Law at Washington University in St. Louis and a noted expert on family law and reproductive rights.
“In particular, the court held unconstitutional on their face two challenged provisions of the Texas law that had targeted abortion providers and caused clinic closures — the hospital admitting-privileges requirement for physicians and the surgical-center requirement for abortion facilities,” Appleton said. “Several states have similar provisions, which this case makes constitutionally vulnerable.”
On a more general level, she said, the court clarified the “meaning and application of the ‘undue burden standard’ that three justices first announced in 1992, stepping away from retrenchments in the constitutional protection of abortion suggested in a 2007 case, Gonzales v. Carhart.
“A critical part of today’s analysis showed that Texas, which tried to justify its restrictions as health measures, had imposed significant obstacles to abortion access without evidence that health benefits were gained or were even needed,” Appleton said.
“It is notable that Justice Kennedy, who wrote the majority opinion in the 2007 case and is routinely regarded as the ‘swing vote,’ joined Justice Breyer’s five-justice majority opinion, with no separate opinion of his own,” she said.
“As the senior member of the majority, Justice Kennedy would have assigned the opinion to Justice Breyer. In fact, Justice Kennedy’s opinion in the 2007 case was difficult to reconcile with a case from 2000, for which Justice Breyer had written the majority opinion. This case seems to bridge that gap, aligning Justice Kennedy with Justice Breyer, at least on the issues raised by the Texas law,” Appleton said. “This development also mirrors other recent suggestions that Kennedy is increasingly siding with his more liberal colleagues, for example, in the affirmative action case from Texas, decided a few days earlier.”