The Supreme Court’s decision invalidating key components of HB2, a Texas law imposing draconian regulations on abortion clinics, gave reproductive rights advocates almost everything they could have wanted. Justice Stephen Breyer’s majority opinion in Whole Woman’s Health v. Hellerstedt clearly declares that Texas’ TRAP law imposes an unconstitutional “undue burden” on women’s ability to terminate their pregnancies. His opinion, however, is also somewhat dry—in classic Breyer fashion—and treads lightly in criticizing Texas’ assertion that it must regulate abortion clinics out of existence in order to “protect women’s health.”
Justice Ruth Bader Ginsburg signed onto Breyer’s decision—but in a separate concurrence, she provided a decidedly blunter assessment of Texas’ anti-abortion argument. “The Texas law called H. B. 2 inevitably will reduce the number of clinics and doctors allowed to provide abortion services,” Ginsburg explained. “Texas argues that H. B. 2’s restrictions are constitutional because they protect the health of women who experience complications from abortions. In truth, ‘complications from an abortion are both rare and rarely dangerous’ ”—as demonstrated in an amicus brief by the American College of Obstetricians and Gynecologists.
“Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory surgical-center or hospital admitting-privileges requirements,” Ginsburg continued, including “tonsillectomy, colonoscopy, and in-office dental surgery.” Then the justice spelled out the core of the Whole Woman’s Health holding—and provided a warning to other states eager to repeat Texas’ attempt to cut back on abortion rights in the name of protecting women. (Ginsburg quotes Judge Richard Posner’s abortion opinion from November; I’ve excised the quotes for clarity.)
Given [these] realities, it is beyond rational belief that H. B. 2 could genuinely protect the health of women, and certain that the law would simply make it more difficult for them to obtain abortions. 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. So long as this Court adheres to Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey, Targeted Regulation of Abortion Providers laws like H. B. 2 that do little or nothing for health, but rather strew impediments to abortion, cannot survive judicial inspection.
Shorter RBG: It’s a new day in abortion jurisprudence—and if you red-state lawmakers thought you could sneak these junk-science anti-abortion laws past me and my court, think again.