The Supreme Court Abortion Ruling Was Even Worse Than You Think For Pro-Lifers


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Kevin Daley Supreme Court correspondent
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The U.S. Supreme Court’s ruling Monday in Whole Women’s Health v. Hellerstedt wasn’t just a defeat for pro-life groups in Texas, the Court’s decision essentially announced a new test that made abortion regulation much harder across the country.

The Supreme Court vacated a Texas law that placed two restrictions on abortion clinics in the state. The bill required all abortion clinics to host medical capabilities equivalent to an outpatient surgical center, and that any doctor performing an abortion have admitting privileges at a hospital not more than 30 miles away from the abortion facility. In a 5-3 decision written by Justice Stephen Breyer, the Court found the law unconstitutional. (RELATED: SCOTUS Axes Texas Abortion Law)

The law was judged against criterion laid out by the Court in Planned Parenthood v. Casey which, while affirming the central holding of Roe v. Wade was still good law, authorized states to levy restrictions on abortion providing they do no manifest an “undue burden” on women seeking access to reproductive health care. Since then, states around the country have established a wide spectrum of abortion regulations, designed to test the exact meaning of “undue burden” in federal courts.

Those efforts may have backfired, as the Court announced a more expansive reading of the undue burden test, which will likely make passing abortion restrictions much more difficult.

The undue burden test is fairly straightforward in that it asks a simple question that can solicit only two responses – is a burden undue or not? However this case raised more questions for the Court to consider.

Pro-choice groups challenging the law argued that the two restrictions placed on abortion clinics did not provide a real benefit to women because abortion is, when performed by professionals in a medically sound environment, by and large a safe procedure. Therefore, their purpose can only be to unduly burden women because the state cannot point to tangible benefits the restrictions accomplish. The Fifth Circuit Court of Appeals, a lower court which upheld the law, ruled that the court is not required to consider the existence (or nonexistence) of medical benefits and that evaluating the utility of said benefits is the proper function of a legislature and not a court. (RELATED: Supreme Court Rejects Three Pro Life Petitions After Abortion Ruling)

The Supreme Court disagreed, finding that the courts are obligated to assess the benefits abortion restrictions confer, and are under no obligation to defer to a legislature on the question of a benefit’s usefulness. “The Court of Appeals’ approach simply does not match the standard that this Court laid out in Casey, which asks courts to consider whether any burden imposed on abortion access is ‘undue,'” the Court said.

“The statement that legislatures, and not courts, must resolve questions of medical uncertainty is also inconsistent with this Court’s case law,” it added.

Furthermore, the test established in Casey required that a state also demonstrate that an abortion regulation is connected to a compelling state interest. The Fifth Circuit found that the Texas restrictions were reasonably related to a compelling state interest. These “magic words” – reasonably related – are called the rational basis test, the default standard of review used when a court judges constitutional questions.

The Supreme Court said the Fifth Circuit also erred in this regard, finding that when a court evaluates an abortion restriction, it must use a more rigorous test. “And the second part of the test is wrong to equate the judicial review applicable to the regulation of a constitutionally protected personal liberty with the less strict review applicable where, for example, economic legislation is at issue,” Breyer wrote.

Taken together, Monday’s reading of the undue burden test from Casey – formerly a straightforward yes or no proposition – now requires states to demonstrate that abortion restrictions yield benefits for women, that the value of said benefits must pass judicial muster, and that abortion restrictions must be measured against a more stringent standard of judicial review.

In dissent, Justice Clarence Thomas acknowledged how stringent the new prongs are. “These precepts are nowhere to be found in Casey or its successors, and transform the undue-burden test to something much more akin to strict scrutiny,” he wrote.

That’s hardly the result pro-life groups were hoping for. The ruling’s implications beyond Texas were immediately evident. The Court denied review on Tuesday in two abortion cases from Mississippi and Wisconsin which, like the Texas law, required doctors preforming abortions to have admitting privileges at nearby hospitals. Other state restrictions on abortion may soon be in jeopardy.

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