Body Politic

When the case was first granted, there were nine justices on the bench. But just before it was argued, Justice Antonin Scalia unexpectedly passed away at the age of 79. Justice Scalia was a well-known conservative voice on the bench who, in several cases, made clear that he did not view abortion as a constitutional right. His passing left eight justices on the bench: four liberals, three conservatives, and one swing vote - Justice Anthony Kennedy, who had voted to uphold the right to abortion in Casey, but had written the opinion restricting late-term abortions in Carhart II.

Stephanie Toti, the advocate for the abortion clinics, laid out the case that the law does not actually protect women’s health. Solicitor General Donald Verrilli argued as amicus curiae for the United States on the side of the abortion clinics. He emphasized the need to give weight to the undue burden standard, and that defining it in this case would be crucial moving forward.

Scott Keller, the attorney for the state of Texas, was questioned intensely by the three female justices. All three pointed out the potentially overprotective nature of the law. Keller defended the law’s written intent as protecting women’s health. He stressed the need to prevent medical complications and improve facility standards.

The Supreme Court ruled 5-3 that HB2’s regulations imposed an undue burden as defined in Casey, and was thus unconstitutional. Justice Breyer’s majority opinion focused on the two pillars of HB2 at issue -- the ambulatory surgical center standards and the hospital admitting privileges -- and weighed their benefits against their costs. The numbers would have to show that abortion was made safer under the new regulations. But there was no such support. Instead, the statistics showed a significant increase in the difficulty of getting an abortion. Since there were more obstacles added than there was a health benefit to women, the Court determined HB2 to be an undue burden. The previous laws Texas had enacted to safely regulate abortion were already satisfying the needs of promoting women’s health, and the addition of HB2 did not add to the safety of the procedure.

In her concurring opinion, Justice Ruth Bader Ginsburg emphasized the research showing that other procedures with more inherent risk than abortion receive less regulation than HB2 required for abortion. She noted that TRAP laws cannot survive judicial inspection.

Justice Thomas’ dissent argued that the Court was reinterpreting previous standards. He argued that this decision advanced an interpretation of the undue burden test not found in Casey. He suggested that the Court was choosing a level of judicial scrutiny to find a specific result. Overall, he argued that the Court should have trusted the Texas legislature’s medical determinations rather than the district court’s.

Justice Alito’s dissent focused on the issue of res judicata. The petitioners in this case had taken HB2 to court before it was enacted to determine it was facially unconstitutional. The United States Court of Appeals for the Fifth Circuit ruled against them, and they did not take that case to the Supreme Court. They instead challenged the law once it had gone into effect. While the majority opinion ruled that this case is different from the earlier one, Justice Alito remained unconvinced. He argued that the current claim was the same as the one that the petitioners did not pursue several years ago, and therefore there was no case. His dissent argues that instead of bringing a new challenge, the petitioners merely presented new evidence. In that case, they could not have a new trial. He also argued that the petitioners did not prove that enough women would be affected by the new regulations to be an undue burden.

For the first time since Casey, states received some guidance on what makes a regulation an undue burden. The Court connected “undue burden” with the requirement that the health benefits of abortion regulations must outweigh the costs, giving it a stronger definition. Justice Breyer’s opinion also relied on data from multiple studies, showing that the Court will consider a regulation in practice, rather than in theory.