Until this week, the future of abortion rights in America looked pretty bleak. All over the country, conservative legislators were passing restrictive laws faster than pro-choice organizations could file suit against them. It was an endless, exhausting game of whack-a-mole, and women and progressives were losing.
But in the wake of Monday’s Supreme Court decision—in which the justices ruled against TRAP laws, which specifically target abortion providers, for the very first time—those barriers look more like a series of dominoes that are already beginning to fall. In a 5-3 decision, the court ruled that both aspects of the Texas law under review—one that said clinics must have admitting privileges at local hospitals, and another that forced them to comply with the requirements for ambulatory surgical centers—imposed an “undue burden” on women’s rights. These provisions weren’t specific to Texas: Versions exist all over the country and will likely be invalidated now that the court has spoken. Alabama’s attorney general has already announced that he will end his crusade to defend a similar provision, which threatened to close four of five clinics operating in his state. And, on Tuesday morning, the Supreme Court declined to review appellate court rulings blocking admitting-privileges requirements in Wisconsin and Mississippi, spelling the end for those laws, as well.
“As the news in Alabama, Wisconsin, and Mississippi shows, yesterday’s landmark ruling was just the beginning,” Planned Parenthood Federation of America President Cecile Richards said in a statement. “This decision has opened the door to go state by state, legislature by legislature, law by law, and restore access to safe, legal abortion. These unconstitutional laws punish women by blocking safe medical care—and they will not stand.”
Requiring admitting privileges—a medically irrelevant piece of paperwork—has proved a particularly effective anti-abortion strategy. They’re virtually unattainable for clinics in conservative parts of the country, where hospitals resist affiliation with anyone who performs the controversial procedure. Eleven states, including Texas, currently have some version of this requirement on the books, and five more states were in the process of implementing such a law, according to The New York Times. Now, it’s likely that none of them will pass legal muster. Among the first to go may be a provision poised to shut down three of the four clinics still open in Louisiana. “It’s hard to see how similar regulations could stand,” Nancy Northup, CEO of the Center for Reproductive Rights, told reporters yesterday. “We expect to rely on [the ruling] heavily in cases going forward.”
Florida is also scrambling to decide what to do about an admitting-privileges-style law set to go into effect Friday. With language more flexible than many of its counterparts, the Florida legislation is not expected to force any clinics to close—but if it did, “that would be very difficult to defend in light of today’s ruling,” Howard Simon, executive director of the American Civil Liberties Union of Florida, said yesterday.
The same may be true of ambulatory surgical center laws, which can cost clinics millions, forcing them to undergo major renovations or rebuild from scratch in order to comply with detailed architectural codes. ASCs are designed to house relatively complex outpatient surgeries. They do nothing to improve the provision of abortion, which, as Justice Ruth Bader Ginsburg pointed out Monday, is safer than childbirth. As of this past March, 22 states, including Texas, had passed some form of ASC requirement, according to the Guttmacher Institute. If advocates take them on in state-by-state lawsuits, it’s possible that few, or perhaps none, would survive the challenge.
Most important, yesterday’s decision may undermine a much broader swath of TRAP legislation—including strategies that conservatives have yet to dream up. “This opinion makes it clear that the court is going to look at the stated justification for a law, and look at the burdens it imposes,” Northrup said. “It’s about making sure that regulations are truly justified.” The court has affirmed the meaning of the “undue burden” standard, and that should spell doom for any law whose sole aim is to make getting an abortion more difficult. To make the most of this decision, women’s groups have their work cut out for them—but it’s exciting that they’re finally armed for the task.