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Today the Supreme Court of the United States (SCOTUS) ruled in favor of human rights—a victory for women all over the country. This time, the decision was in relation to reproductive rights and, specifically, the right to choose.

In the United States, the ability to have an abortion in this country is largely dependent on the geographical region in which we reside. In many states and counties across the US, women have no other choice but to travel for five, ten, fifteen, even twenty hours or more, just to reach a medical provider authorized and able to perform an abortion service.

This simply isn’t viable for most women seeking abortion services. Particularly women living in poor and marginalized communities without adequate access or options for transportation, childcare, receiving paid, or even un-paid, time off of work, etc. Not to mention the exorbitant cost of making such a trip, paying for gas, bus tickets, hotel accommodations, food while on the road, etc.

This is why access to abortion clinics and providers is a fundamental component of the right to choose. As the United States Supreme Court has held, any restrictions, rules, or regulations that place an “undue burden” on a woman’s right to choose is a violation of the right to choose itself. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 878 (1992).[1]  

The case before us, Whole Women’s Health v. Hellerstedt, dealt with two provisions of the hotly contested Texas House Bill 2. Specifically, the “admitting-privileges requirement,” and the “surgical-center requirement,” and at issue was whether one or both of these requirements constituted an undue burden on a woman’s right to choose, therefore violating the right to choose itself. Berkeley Law Professor Melissa Murray co-authored and submitted an amicus brief supporting women's reproductive rights as it relates to this case. 

The “admitting-privileges requirement” of Texas’s House Bill 2 says, in part, that “[a] physician performing or inducing an abortion . . . must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that . . . is located not further than 30 miles from the location at which the abortion is performed or induced.” Further, the “surgical-center requirement” says that, “the minimum standards for an abortion facility must be equivalent to the minimum standards adopted under [the Texas Health and Safety Code section] for ambulatory surgical centers.”

While these provisions may appear logical and even desirable to the general public, from a health and safety standpoint, they are absolutely unnecessary in the eyes of the expert medical community.[2]

Held: In writing the majority opinion for Whole Women’s Health v. Hellerstedt, Justice Breyer, joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan, held that both provisions of Texas’s House Bill 2 at issue violate the Federal Constitution. Specifically articulating that, “neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes. Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, Casey, supra, at 878 (plurality opinion), and each violates the Federal Constitution. Amdt. 14, §1.”

This is a major victory for women’s rights, and human rights generally. Justice Ginsburg’s brief concurring opinion in included directly below for a more in-depth explanation of the Court’s reasoning.

JUSTICE GINSBURG, concurring.

The Texas law called H. B. 2 inevitably will reduce the number of clinics and doctors allowed to provide abortion services. 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.” Planned Parenthood of Wis., Inc. v. Schimel, 806 F. 3d 908, 912 (CA7 2015). See Brief for American College of Obstetricians and Gynecologists et al. as Amici Curiae 6–10 (collecting studies and concluding “[a]bortion is one of the safest medical procedures performed in the United States”); Brief for Social Science Researchers as Amici Curiae 5–9 (compiling studies that show “[c]omplication rates from abortion are very low”). Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory- surgical-center or hospital admitting-privileges requirements. See ante, at 31; Planned Parenthood of Wis., 806 F. 3d, at 921–922. See also Brief for Social Science Re- searchers 9–11 (comparing statistics on risks for abortion with tonsillectomy, colonoscopy, and in-office dental surgery); Brief for American Civil Liberties Union et al. as Amici Curiae 7 (all District Courts to consider admitting- privileges requirements found abortion “is at least as safe as other medical procedures routinely performed in outpatient settings”). Given those 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.” Planned Parenthood of Wis., 806 F. 3d, at 910. 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. See Brief for Ten Pennsylvania Abortion Care Providers as Amici Curiae 17–22. So long as this Court adheres to Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v.Casey, 505 U. S. 833 (1992), Targeted Regulation of Abortion Providers laws like H. B. 2 that “do little or nothing for health, but rather strew impediments to abortion,” Planned Parenthood of Wis., 806 F. 3d, at 921, cannot survive judicial inspection.


[1] In Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 878 (1992), a plurality of the Court concluded that there “exists” an “undue burden” on a woman’s right to decide to have an abortion, and consequently a provision of law is constitutionally invalid, if the “purpose or effect” of the provision “is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” (Emphasis added.) The plurality added, “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.” Ibid.

[2] See Justice Ginsburg’s brief Concurrence, elaborating on this point farther and citing multiple briefs from medical experts, colleges, and institutions, which immediately follows the Court’s holding, below.