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Supreme Court strikes down Texas abortion clinic restrictions

Here's what you need to know about the Supreme Court's abortion decision (Video: Gillian Brockell/The Washington Post)

The Supreme Court on Monday ruled resoundingly for abortion rights advocates in the court’s most important decision on the controversial issue in 25 years, striking down abortion-clinic restrictions in Texas that are similar to those enacted across the country.

Justice Anthony M. Kennedy joined the court’s liberals in the ­­5- to-3 decision, which said Texas’s argument that the restrictions were meant to protect women’s health was merely cover for making abortions harder to obtain.

The Texas provisions required doctors who perform abortions at clinics to have admitting privileges at a nearby hospital and ordered clinics to meet hospital-like standards of surgical centers.

How restrictive are abortion regulations in your state?

“The surgical center requirement, like the admitting-privileges requirement, provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an ‘undue burden’ on their constitutional right to do so,” Justice Stephen G. Breyer wrote for the majority.

Similar restrictions have been passed in other states, including Virginia, and now must be considered suspect.

“Today women across the nation have had their constitutional rights vindicated,” said Nancy Northup, president of the Center for Reproductive Rights, which represented the Texas clinics. “The Supreme Court sent a loud and clear message that politicians cannot use deceptive means to shut down abortion clinics.”

The admitting-privileges requirement is already in place across most of Texas and has reduced the number of clinics from around 40 to around 20, abortion rights advocates say. They say the surgical-center requirement would have forced more closures, cutting the number of clinics to about 10.

The scene outside the Supreme Court as justices ruled on Texas abortion law

Abortion rights activists hold placards outside of the Supreme Court ahead of a ruling on abortion clinic restrictions in Texas. (Mandel Ngan)

Texas officials criticized the court decision for what they described as judicial overreach that will endanger innocent lives.

“The decision erodes states’ lawmaking authority to safeguard the health and safety of women and subjects more innocent life to being lost,” Texas Gov. Greg Abbott (R) said in a statement. “Texas’ goal is to protect innocent life, while ensuring the highest health and safety standards for women.”

Kennedy, the court’s pivotal justice on abortion rights, assigned the opinion to Breyer. The court’s liberal female justices, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, joined it.

Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. dissented.

The Supreme Court rules against Texas and for science in abortion case

The outcome of the Texas case turned on an interpretation of the court’s ruling nearly 25 years ago in Planned Parenthood v. Casey. Written by three justices including Kennedy, it said states had a legitimate interest in regulating abortion procedures but could not impose an “undue burden” on a woman’s right to terminate a pregnancy before fetal viability.

Included in the description of such a burden was “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.”

Ginsburg joined Breyer’s opinion Monday but wrote separately to amplify its message, saying it fit within the court’s previous rulings protecting abortion rights.

And she sent readers on a dictionary search and set a French phrase trending online with this: “When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety.” The phrase means, roughly, for lack of a better alternative.

President Obama praised the ruling, saying that the restrictions in Texas “harm women’s health and place an unconstitutional obstacle in the path of a woman’s reproductive freedom.”

“We remain strongly committed to the protection of women’s health, including protecting a woman’s access to safe, affordable health care and her right to determine her own future,” Obama said in a statement released by the White House. “Women’s opportunities are expanded and our nation is stronger when all of our citizens have accessible, affordable health care.”

Attorney General Loretta E. Lynch vowed that the Justice Department “will continue to defend the constitutional rights of women across America — including the right to reproductive freedom.”

The outcome would almost surely have been 5 to 4 had Justice Antonin Scalia not died in February, and Thomas quoted his friend in his dissent. Monday’s decision “exemplifies the court’s troubling tendency ‘to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue,’ ” Thomas wrote, quoting a Scalia dissent in a different case.

Alito also objected to the majority and read parts of his dissent from the bench to emphasize his disagreement.

“This is an abuse of our authority,” Alito said, holding up the thick packet of regulations. The court had “no authority to strike down perfectly legal provisions.”

Alito and Roberts contested the majority’s findings that the law had been the reason so many abortion clinics in Texas closed and also complained that the court had relaxed its usual strict rules about bringing challenges to the Supreme Court in order to strike down the Texas law.

They would have preferred to return the case to lower courts to tailor a more limited remedy that would have kept at least part of the law on the books.

Hillary Clinton, the presumptive Democratic nominee for president, called the decision “a victory for women in Texas and across America” in a message posted on Twitter. She also said that despite the ruling, the fight over abortion access will continue into the next presidency and beyond.

“This fight isn’t over: The next president has to protect women’s health,” Clinton wrote in the tweet, which was signed to designate it was written by her rather than a staffer. “Women won’t be ‘punished’ for exercising their basic rights.”

Clinton’s likely Republican general-election opponent, Donald Trump, did not publicly react to the ruling Monday morning, and his campaign did not immediately respond to a request for comment.

After winning the favorable ruling, Amy Hagstrom Miller, president and chief executive of Whole Woman’s Health, the plaintiff in the case, said the group has to figure out whether and how its Texas centers can reopen. Miller said leases on centers have expired and licenses have been surrendered to the state. Money must be raised to acquire new equipment, and rebuilding the infrastructure of providers across Texas will take a good deal of time.

The court’s decision concerned two parts of a Texas law, HB 2, passed by the Republican-dominated Texas legislature — the fiery debate over the law brought Democrat Wendy Davis to prominence — and signed in 2013 by then-Gov. Rick Perry (R).

Northup and the clinics said the requirement that clinics meet surgical-center standards was prohibitively expensive and impossible to meet in some instances. They also said the requirement that doctors have hospital admitting privileges could not be met in many places, simply because doctors who perform abortions do not send enough patients to hospitals to get the designation.

Texas said it was motivated by the case of Kermit Gosnell, a Philadelphia physician who ran a shoddy abortion clinic and was convicted of murder.

In his opinion, Breyer said Texas already had laws in place before 2013 that would have prevented such a situation.

A district court found the restrictions unconstitutional. But a panel of the U.S. Court of Appeals deferred to the legislature’s reasoning for passing the law.

Breyer said that was wrong.

“The statement that legislatures, and not courts, must resolve questions of medical uncertainty is . . . inconsistent with this Court’s case law,” Breyer wrote. “Instead, the Court, when determining the constitutionality of laws regulating abortion procedures, has placed considerable weight upon evidence and argument presented in judicial proceedings.”

Among the evidence undermining the surgical-center requirement, Breyer said, is a finding that early-term abortions have a lower mortality rate — five deaths in a decade in Texas — than childbirth, which the state allows to take place at home, or procedures such as a colonoscopy or liposuction, which do not carry the surgical-center requirement.

Texas could also not show why doctors needed an admitting privilege to a local hospital, Breyer said.

“When directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case,” Breyer wrote.

Nonetheless, Ken Paxton, the Texas attorney general, said it was “exceedingly unfortunate that the court has taken the ability to protect women’s health out of the hands of Texas citizens and their duly-elected representatives.”

The justices took the case because courts across the country had split on the constitutionality of the clinic requirements.

An appeals court, for instance, found a Wisconsin law similar to the one in Texas unconstitutional. And enforcement of the restrictions has been a source of controversy elsewhere.

Virginia passed a law in 2011 that called for increased standards for clinics there.

But Gov. Terry McAuliffe (D) has targeted those restrictions since taking office in 2014. The state board of health, dominated by his appointees, took steps last year to reverse the mandates on abortion clinics to have transfer agreements with hospitals and to abide by strict construction and design standards. The board is slated to give the changes final approval at a September meeting. Meanwhile, clinics continued to operate under temporary waivers against new construction rules.

The restrictions could potentially be restored under a future Republican administration.

“Moving forward, the statutes and restrictions really have a big question mark and red flags,” said Progress Virginia Executive Director Anna Scholl.

Victoria Cobb, executive director of the Virginia Family Foundation, said in a statement that abortion rights advocates were exaggerating the effects of the Supreme Court ruling and said Virginia’s abortion restrictions were not as strict as the Texas laws.

“No one can honestly say how this decision will apply to a very different set of facts in Virginia until a court decides how it applies,” Cobb said. “Prior to our law, Virginia had no standards for this industry. It is wholly unclear if the court believes a state should allow an industry to operate with no standards and no inspections to ensure access.”

Maryland licenses and has specific requirements on abortion clinics, but state Attorney General Brian E. Frosh (D) said that “neither of the restrictions that Texas sought to impose” are part of Maryland’s abortion laws.

Mark Berman, Fenit Nirappil, Katie Zezima and Bill Turque contributed to this report.

Correction: An earlier version of this report misidentified the Virginia Family Foundation’s Victoria Cobb.