The Supreme Court Exposes the TRAP Laws Charade.
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The US Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt on Monday finally took women and their reproductive health seriously. After decades of simply accepting legislative claims that laws restricting abortion services were intended to protect women, the court took off the blinders and faced reality. Targeted Regulation of Abortion Providers (TRAP) laws, like the Texas law before the court (described here), are promoted by abortion opponents and designed not to protect women’s health, but rather to reduce and discourage abortion services. They do not improve the safety of medical procedures. They make it more difficult for women to access reproductive health care.
This has been obvious to public health and medical professionals. When Justices Thurgood Marshall and Harry Blackmun were on the court, they reminded their brethren of how their legal decisions could work hardships on the most vulnerable, especially the poor and women of color. But, in recent decades, in the rarified air of the Supreme Court, debate has been couched in doctrinal abstractions, and the real world effects of legislation have rarely been considered.
That changed abruptly and dramatically with Whole Woman’s Health. The 5-to-3 decision struck down a Texas TRAP law on the grounds that it provided no health or safety benefits, but instead shuttered more than half the clinics that provide abortion services in Texas. This left the 5.4 million Texas women of reproductive age with severely restricted access to care and the probability of riskier, delayed abortions, self-abortions, or even riskier childbirth.
The decision is a major step forward in protecting women’s reproductive rights. First, instead of just accepting a state’s assertion that a law was designed to protect women’s health, the court demanded evidence that a health problem existed. Second, where the law negatively affects the constitutional right to abortion, the state must provide evidence that the burdens on women’s access to abortion are outweighed by the health benefits. The court found no safety problem to be solved and a wide negative affect on access. Justice Breyer’s majority opinion, for example, pointed out that the mortality rate for colonoscopy is 10 times that of abortion, and liposuction is 28 times that of abortion, yet outpatient clinics performing those procedures are not subject to the extensive requirements Texas imposed on facilities performing abortions. Indeed, he added, “doctors would be unable to maintain admitting privileges or obtain those privileges for the future, because the fact that abortions are so safe meant that providers were unlikely to have any patients to admit.” Thus, the evidence supported the conclusion that the Texas law was medically unnecessary, offered no health benefits, and was sufficiently burdensome that many women would not be able to exercise their right to abortion.
Second, this was the first major abortion case heard by a Supreme Court with three women Justices: Ginsburg, Sotomayor, and Kagan. They made a difference. During oral arguments, they refused to allow the Chief Justice to end on time in order to push for answers from Texas’ lawyers who offered talking points, but no facts, to defend the law. Whatever their personal views on abortion, the female justices had to know what reproductive health care is like for women. They could not be fooled. This demonstrates the importance of having justices who understand what life is like for people who are actually affected by the laws the Court considers.
Third, the decision clarifies and strengthens—for the foreseeable future—the scope of the constitutional right to abortion. Justice Breyer’s majority opinion elaborated on the undue burden test used in Planned Parenthood of Southeastern Pennsylvania v. Casey in 1992. The meaning of an undue burden has vexed courts and commentators. In Whole Woman’s Health, Justice Breyer confirmed Casey’s holding that legislation regulating access to abortion at any time during pregnancy first must have a legitimate state purpose—and if health of women is that purpose, it must be backed up by evidence. Although not as strong as a “compelling state interest,” which was originally required in Roe v. Wade, this test is more stringent than the simple “legitimate” state purpose test used in Casey.
The majority also expanded on Casey’s second element: If the law interferes with the right to decide to have an abortion, the law must not pose an undue burden, meaning it must not have “the purpose or effect of placing a substantial obstacle in the path of a woman seeking abortion of a nonviable fetus.” If the burdens outweigh the benefits, the burden on women is “undue.” The difference between Whole Woman’s Health and Casey is that today’s court is willing to evaluate what actually addresses a safety issue or poses a substantial obstacle in the real world. In Whole Woman’s Health, the court’s response to the state’s assertion that hospital admitting privileges and surgical center requirements would improve women’s health without creating an undue burden on women was: Prove it.
The decision makes clear that it is the judiciary, not the legislature, that has the authority to judge the validity and weight of the evidence. State legislatures may see this as a vote of no confidence, but the court is simply permitting trial courts to apply its “undue burden” test to the facts. This is what trial courts do. And evidence matters. Relevant evidence includes testimony and studies presented by physicians, public health researchers, and other experts, who can play a valuable role in distinguishing fact from fantasy.
Justice Alito dissented, joined by Chief Justice Roberts, but objected only that the evidence did not necessarily prove that HB2 forced clinic closures and that procedural rules of res judicata should have prevented hearing the case in the first place; he did not argue that there is no constitutional protection of the right to abortion. Justice Thomas, writing only for himself, appears to be the lone justice to argue that there is no constitutional right to abortion.
This case is a victory for reproductive rights and will drastically limit the enforceability of most TRAP laws. It will not, of course, quell the political controversy over abortion. Laws like those in Texas will likely be successfully challenged—at least in the absence of medical evidence that they actually protect women’s health without significantly reducing access to care—but new anti-abortion actions are likely. Given this very strong opinion, however, they are much less likely to survive court challenge.
My thanks to Professor George Annas for valuable suggestions on this Viewpoint.
Wendy Mariner is the Edward R. Utley Professor of Health Law.