Not Just Texas: The States Most Likely To Be Affected By The New Abortion Ruling

AP

The Supreme Court ruled 5-3 on the side of abortion rights Monday in a Texas case that could have broad effects on states across the country that have passed similar abortion restrictions.

What exactly the case – Whole Woman’s Health v. Hellerstedt – will mean for them, however, will depend on a long and unpredictable maze of future litigation.

Elizabeth Nash, the senior state issues associate at the Guttmacher Institute, called the Court’s ruling Monday the “most momentous decision in a generation.” Yet, she warned, there was still a lot left to fight over.

“Nothing is immediate,” Nash explained. “This is not marriage equality.”

The Texas case involved the application of the balancing test put forward in the 1992 Supreme Court decision Casey v. Planned Parenthood. The court sought to balance a law’s burdens on women seeking abortions with the benefits of the health protections it sought to provide. What the court found in Whole Woman’s Health was that the burden on women far outpaced any alleged health benefits.

At issue in the Texas case were two specific abortion restrictions. One provision of the Texas law required abortion providers to obtain admission privileges at a hospital. Another provision required abortion clinics to meet the same standards as ambulatory surgical centers. The Supreme Court struck down both provisions as unconstitutionally burdensome on women seeking abortions.

The majority opinion, written by Justice Stephen Breyer, was a rigorous examination of the evidence and arguments surrounding the Texas legislation. Breyer also said that in examining this and other anti-abortion laws, any uncertainty about restrictions’ medical benefits should be taken into account by the courts, and not just left to the legislatures, as the Texas law’s defenders had claimed.

Other states have similar restrictions in place. The question of whether they pass constitutional muster are very fact-specific and will be decided on a case-by-case basis, something the Supreme Court emphasized again Monday.

“This decision will also be critical in the many many legal challenges happening around the country, to other laws that threaten the health, safety and fundamental rights of women,” Nancy Northup, the president and CEO for the Center for Reproductive Rights, which was litigating this case, said on a conference call Monday. “The impact will be felt beyond it, in places like Louisiana, Mississippi and Wisconsin, facing their own abortion access crises because of the similarly deceptive laws.”

ADMITTING PRIVILEGES

The decision Monday marked a significant win for abortion rights advocates who had argued for years that admitting privilege laws, which require abortion providers be able to access nearby hospitals, were difficult to obtain and did little to protect the health of women.

But Texas is just one of nearly a dozen states that have passed similar laws. Monday’s case provides a new legal basis for challenging those laws, but doesn’t mean they will automatically be struck down.

There are currently six states where similar admitting privilege laws are already being challenged in court. Nash said that she expects those cases–in Alabama, Kansas, Louisiana, Mississippi, Oklahoma and Wisconsin–will continue to be litigated.

For four states where the laws are currently in effect–Missouri, North Dakota, Utah and Tennessee–Nash suggested new legal challenges could emerge in light of Monday’s Supreme Court decision.

CLINIC REGULATIONS

While all abortion clinics must meet a certain level of safety, the Supreme Court ruled Monday that Texas’s requirement that applied the standards for “ambulatory surgical center to abortion clinics” in effect limited abortion access and weren’t necessary, considering that abortion is much safer than other procedures.

The court ruled that some of those requirements in Texas, which included “among other things, detailed specifications relating to the size of the nursing staff, building dimensions, and other building requirements” did “not benefit patients” and were “not necessary.”

While nearly half of the states in the country have some kind of law requiring abortion clinics to meet “surgical center standards” that the Guttmacher Institute classifies as “beyond what is necessary to ensure patients’ safety,” Nash argued five states have requirements as burdensome as Texas had: Michigan, Missouri, Pennsylvania, Tennessee and Virginia.

Nash said that as litigators understand and digest Monday’s court decision, it additional challenges could be launched in other states that have clinical restriction laws on the books.

“I do not put it past anybody to try to bring an abortion case before the Supreme Court,” Nash said. “This issue is extremely contentious and it is just one that we as a society haven’t fully resolved for ourselves, and that is why we see so much litigation.”

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