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SCOTUS Ends Texas's Abortion Clinic Restrictions. What's Next?

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By Casey C. Sullivan, Esq. on June 29, 2016 2:14 PM

The Supreme Court ended its most recent term with a bang on Monday, reversing the Fifth Circuit and declaring that Texas's restrictions on abortion providers constituted an undue burden on a woman's access to abortion, in violation of the Constitution.

In Whole Woman's Health v. Hellerstedt, the Court rejected the Fifth Circuit's determination that uncertainty about the health risks of abortion can justify restrictions on physicians. Instead, the Court found that any such restrictions must be based on convincing medical evidence, to be evaluated by courts, not lawmakers, and any burdens those restrictions impose must be outweighed by their health benefits. The ruling is certain to affect many pending abortion lawsuits, in the Fifth Circuit and beyond.

Fifth Reversed, Abortion Rights Reaffirmed

In 2013, Texas adopted some of the strictest abortion clinic restrictions in the nation. Under House Bill 2, abortion providers would have to have admitting privileges in local hospitals and clinics would need to meet the standards of surgical centers. Those rules, which would be difficult and extremely expensive to meet, were expected to result in the closing of almost all of the Lone Star State's clinics.

The Fifth Circuit upheld that law, finding that restrictions on abortion providers need only be evaluated under a rational basis standard. Further, the Fifth explained that it was not the court's position to second guess legislative determinations made in the face of medical uncertainty. The Fifth, however, considered these questions only in arguendo, finding that the suit over HB 2 was actually barred by res judicata.

The Supreme Court's ruling was a strong renunciation of that logic; the Court's most sweeping ruling supporting abortion access since 1992's Planned Parenthood v. Casey.

Moving Beyond Texas

The Supreme Court's decision forecloses what had been a growing front in the abortion wars: regulation on abortion providers, rather than women seeking to get abortions. Traditional attempts to reduce abortion access have taken approaches such as redefining viability, imposing waiting requirements on women, or demanding trans-vaginal ultrasounds.

But Texas's rules represented a relatively novel approach: impose onerous requirements on abortion doctors and clinics, in the name of protecting women's health. Until Monday, that tactic had been widely successful, leading to the closure of abortion clinics throughout the country.

Yet, as harsh as Texas's restrictions were, similar laws are in place throughout the country -- many of them suspended by court order while the Supreme Court considered Whole Woman's Health. That includes Texas-style abortion restrictions in Louisiana and Mississippi, which are currently being challenged in the Fifth Circuit and will likely be found to be unconstitutional.

Outside of the Fifth, some states are already giving up the fight. Alabama's attorney general dropped his appeal from a ruling against the state's abortion law, which was nearly identical to Texas's. "There is no good faith argument that Alabama's law remains constitutional in light of the Supreme Court ruling," he announced.

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