TWENTY-FOUR years ago, the Supreme Court declared that politicians could not impose “unnecessary health regulations” that create “a substantial obstacle to a woman seeking an abortion.” This year, the court heard a challenge to a Texas law that did exactly that — impose superfluous and burdensome rules on abortion providers in an obvious attempt to close them down. Even before the constitutionality of Texas’s law had been fully determined, the law showed its potency as abortion clinics closed across the state.
On Monday, five justices stayed true to the guidance the court offered 24 years ago and re-cemented reproductive freedom’s status as a constitutional right, repudiating Texas’s transparent attempt to hollow it out. The 5-to-3 majority struck down a provision that required that doctors performing abortions have admitting privileges at local hospitals and another that forced abortion clinics to meet the standards Texas imposes on ambulatory surgical centers — governing hallway widths, heating, cooling, plumbing and the like. Neither provision would have made medical abortions appreciably safer. But together they would have resulted in 750,000 Texas women of childbearing age living farther than 200 miles from the closest in-state abortion provider.
Writing for the majority, Justice Stephen G. Breyer made clear that courts would evaluate the medical benefits, if any, of similar laws in the future — and strike down those with few to no benefits in return for the burdens they imposed. This balancing requirement, an elaboration on previous rulings, will make it harder for states to use the interest of protecting women as cover for limiting their reproductive rights.
In a concurring opinion, Justice Ruth Bader Ginsburg made this point explicit: “So long as this Court adheres to Roe v. Wade . . . laws like H.B. 2 that ‘do little or nothing for health, but rather strew impediments to abortion,’ cannot survive judicial inspection.”
In other words, the court will not look the other way as politicians undermine its long-standing precedent.
The five-justice majority did not have to rule so strongly. In fact, they had to sidestep several procedural hurdles in order to do so, to the dismay of Justice Samuel A. Alito. He, along with Chief Justice John G. Roberts and Justice Clarence Thomas, complained in a dissent that the majority ignored that courts had already considered some of the issues in the case, and that the abortion-rights side was essentially getting a second chance to make the same argument. These are not idle criticisms. The court may find it challenging in future cases to explain how they can deny others the procedural lenience they gave to abortion-rights plaintiffs in this one.
Yet abortion has been among the most contentious legal subjects of the past half-century, and several issues have desperately required lucid guidance from the court since the last major ruling. The majority’s eagerness to clarify what the Constitution requires resulted in a ruling that, on the merits, is both sensible and clear: Politicians may not use obvious pretexts to erode a woman’s right to end a pregnancy. Forty-three years after Roe, they should stop trying.