Jim Rosica
In a decision that could reverberate in Florida, the U.S. Supreme Court struck down a Texas law that clamped down on abortion access because it “unduly burden(s)” women’s reproductive rights.
The court announced its 5-3 decision Monday in Whole Woman’s Health v. Hellerstedt. It was one of three final opinions released before the justices go on summer recess.
The Texas law mirrored a measure passed in Florida this year. It too requires doctors performing abortions to have admitting privileges at a nearby hospital and requires clinics where they work to be set up and regulated similarly to outpatient surgical centers.
Planned Parenthood is now seeking a preliminary court order in federal court in Tallahassee to prevent the Florida law’s enforcement.
But that action focuses on the law’s defunding the organization, a required annual inspection of its patient files, and a redefinition of gestational periods, according to Laura Goodhue, executive director of Florida Alliance of Planned Parenthood Affiliates. A hearing in that case is set for Wednesday.
State Sen. Kelli Stargel said the Florida law, which doesn’t take effect till Friday, has been unfairly compared to Texas’: “They’re not the same.”
Stargel, the Lakeland Republican who backed the new provisions, said one difference is requiring physicians to have admitting privileges at a hospital “within reasonable proximity to the clinic,” not within a set distance.
But Adam Levine, an adjunct professor at Stetson University College of Law, said the court’s ruling will give impetus to groups like Planned Parenthood and others seeking to overturn the Florida law.
“If the intent or effect of a law is to place a substantial burden on getting a pregnancy termination, then it’s not permissible,” said Levine, an obstetrician-turned-attorney. But even if “the provisions are determined to be similar enough, they can be enforced by the state until someone challenges them.”
Further, Levine thinks challengers seeking a preliminary court order preventing the law’s enforcement would have to argue they’re “likely to prevail on the merits.” Because of the Hellerstedt decision, “someone trying to prevent both the physician privilege requirement and the facility regulation requirement should prevail,” he said.
Damien Filer, a spokesman for Planned Parenthood in Florida, said “while the court’s ruling will have nationwide effect, no other state laws will be immediately struck down.” He added, “it is possible that the standard the court sets could be used to challenge restrictions in other states.”
Mary Ziegler, a Florida State University law professor who studies reproductive health issues, said she thought the laws were “similar enough” that “at a minimum, (Monday’s decision) casts serious doubt on the constitutionality of all laws like it.”
She added that the decision also made clear legislatures can’t just say they’re passing abortion restriction measure to benefit women’s health, “they have to show that through some proof.”
Caroline Mala Corbin, a constitutional law professor at the University of Miami School of Law, agreed. She says the decision “really gives some bite to the ‘undue burden’ test that applies to abortion regulation.”
What’s new in the high court’s jurisprudence on abortion is that state laws now must “do something to actually benefit women’s health,” she said.
“If a state argues that (an abortion) law is going to improve women’s health, the court will examine” whether that’s the case, Corbin said. “So going forward, I think all (abortion-related) regulations will be harder to sustain.”
Meantime, former Texas state Sen. Wendy Davis told MSNBC she was “overjoyed” and “fighting back tears” following the Supreme Court decision.
Davis, a Democrat who unsuccessfully ran for Texas governor against Republican Greg Abbott in 2014, had filibustered another bill for 11 hours that would have restricted access to abortions.
“It’s incredible news for the women of Texas,” Davis said. “It’s incredible news for the women throughout this country.”
The court’s opinion was split along the usual ideological lines. The majority included Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Anthony Kennedy, the court’s swing vote. The dissenters were Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito.
___
Editor’s note: A look at Florida political reaction to the ruling is here.
