Once again, the U.S. Supreme Court on Monday upheld the right of women to choose when and whether to bear children.
The five-justice majority also underscored the fragility of that right and again made clear the importance of the 2016 presidential election. Three justices who were part of the majority are ages 77, 79 and 83. The next president could replace one if not three of them. The three dissenters are in their 60s.
The 5-3 decision in Whole Woman’s Health v. Hellerstedt stems from a 2013 law that gained national attention when then-Texas state Sen. Wendy Davis, wearing pink sneakers, held a filibuster in the Texas Senate. She was vindicated with Monday’s ruling.
The law, House Bill 2, required doctors performing abortions to have admitting privileges at nearby hospitals, and that the clinics be enlarged and staffed as if they were surgical centers.
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Since the restrictions were adopted – and upheld by a federal appellate court based in New Orleans – the number of Texas’ abortion clinics dropped to 18 from 40, The Dallas Morning News reported.
“Patients seeking these services are less likely to get the kind of individualized attention, serious conversation and emotional support that doctors at less taxed facilities may have offered,” Justice Stephen Breyer, 77, wrote in the majority opinion.
Breyer based the majority decision on a 1992 decision written by Justice Anthony Kennedy, who joined the five-justice majority and is 79. In that decision, Kennedy wrote that without a compelling need, a state cannot place substantial obstacles in the path of a woman’s choice.
Texas argued that the regulations were necessary to protect women’s health. But the justices noted that childbirth is 14 times more likely than abortion to result in death, though Texas law allows a midwife to oversee childbirth in the patient’s own home. The justices also cited a study of California’s Medi-Cal-funded abortions: only 15 of 54,911 abortion patients required transfer to the hospital on the day of the abortion.
Justice Ruth Bader Ginsburg, 83, wrote in a concurring opinion that so long as the court adheres to Roe v. Wade, the 1973 decision legalizing abortion rights, “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.”
In fact, TRAP laws have become the norm in much of the nation. The Guttmacher Institute says 31 states adopted 288 laws and regulations between 2011 and 2015 to restrict abortions. Kansas has 30 restrictions, followed by Arkansas and Oklahoma with 22, Indiana with 20 and Arizona with 18.
In a separate dissent, Justice Clarence Thomas, 68, wrote: “I remain fundamentally opposed to the court’s abortion jurisprudence” – as if voters need another reason to care about the outcome of the 2016 presidential election.