THE DECISION OVERTURNING TEXAS’ ABORTION LAW WILL HAVE A DRAMATIC IMPACT ACROSS AMERICA

Jun 27, 2016 by

Healthby Tara Culp-ResslerTHINK PROGRESS

CREDIT: AP Photo/Evan Vucci

Bethany Van Kampen, left, hugs Alejandra Pablus as they celebrate during a rally at the Supreme Court

In a decision that will have far-reaching effects across the country, the Supreme Court on Monday struck down two provisions of a sweeping anti-abortion law in Texas.

At issue in the Texas case were two abortion restrictions that fit into a larger strategy known as the “Targeted Regulation of Abortion Providers,” or TRAP. These type of laws indirectly restrict access to abortion by imposing burdensome red tape on clinics and providers — making it so difficult to legally offer abortion that many clinics are forced to close.

The high court reversed two major provisions in Texas’ law — first, a requirement that abortion doctors obtain “admitting privileges” from local hospitals; second, a requirement that abortion clinics bring their standards in line with “ambulatory surgical centers” — siding with the plaintiffs’ argument that these policies do nothing to improve patient health and safety. In the majority opinion, Justice Stephen Breyer wrote that these “unnecessary health regulations” ultimately pose an “undue burden” on women’s right to abortion.

The decision reaffirms the standard put forth in Planned Parenthood v. Casey — another major abortion case that the Supreme Court took up in 1992 — that stipulated state laws may not restrict abortion to the point that presents an “undue burden” on the right to choose. It suggests that some TRAP laws may go too far to violate this standard.

That’s significant because TRAP laws — many of which are identical to Texas’ — have quickly spread across the country over the past decade. Led by Americans United for Life (AUL), a sophisticated anti-abortion group that drafts model legislation and shops it around to state lawmakers, multiple states have adopted the same exact type of admitting privileges and ambulatory surgical center requirements.

It’s been a highly successful strategy for the anti-abortion movement because it refocuses the debate away from restricting women’s rights and toward (supposedly) keeping women safe.

trap map

According to the Guttmacher Institute, which tracks state-level abortion laws, 14 states require abortion providers to have some kind of partnership with a local hospital. Five of those states specify that must be in the form of admitting privileges. And 22 states require that abortion clinics must follow the same licensing standards as ambulatory surgical centers.

Monday’s decision doesn’t mean that those state laws will automatically be rolled back. The arguments against Texas’ TRAP law relied on a lot of specific data about how women in that state have suffered with sharply reduced access to clinics. Other states may be able to mount their own arguments about why their own TRAP laws haven’t had such a dire effect.

But it is clear that TRAP laws are now on much, much shakier ground than they were before the high court waded into this issue. In the U.S. Court of Appeals for the 5th Circuit — where Texas is situated — similar admitting privileges requirements in Louisiana and Mississippi are currently on hold after being challenged in similar lawsuits. Monday’s decision will likely have an immediate impact on the outcome of that pending litigation. Particularly in Mississippi, where the TRAP law threatens to shutter the state’s sole abortion clinic, it now seems incredibly unlikely that policy will ever be allowed to take effect.

Justice Ruth Bader Ginsburg’s concurrence, in fact, suggests that TRAP laws should always fail to pass constitutional muster. We haven’t quite reached that clear of a legal precedent, which would wipe out the TRAP laws across the country. But Monday’s decision is the first step toward that new legislative reality — and a sign that Americans United for Life needs to find a new strategy.

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