Fox News is reporting on the 5-3 ruling on a case which involved the constitutionality of two provisions of a Texas law regulating abortion in that state. One provision required doctors who perform abortions to have privileges to admit patients to a local hospital and the other requires abortion clinics to have facilities that are comparable to outpatient surgical centers.
Since the law was passed in 2013, the number of clinics providing abortion services in Texas dropped to 19 from 42. Opponents said that number would fall to ten if the Supreme Court upheld the law.
The state of Texas argued that the laws are constitutional because they are intended to protect women’s health. The challengers argue that the laws are actually intended to close clinics and limit women’s access to abortion.
Five members of the high court sided with the challengers with Chief Justice John Roberts, Justices Samuel Alito and Clarence Thomas dissenting.
Writing for the majority, Justice Stephen Breyer wrote: “We agree with the District Court that the surgical center requirement, like the admitting-privileges requirement, provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an ‘undue burden’ on their constitutional right to do so.”
However, in his dissent, Justice Samuel Alito faulted the Court for breaking its own rules when arriving at its decision.
For example, he writes: “Shortly after Texas enacted House Bill 2 (H. B. 2) in 2013, the petitioners in this case brought suit, claiming, among other things, that a provision of the new law requiring a physician performing an abortion to have admitting privileges at a nearby hospital is ‘facially’ unconstitutional and thus totally unenforceable. Petitioners had a fair opportunity to make their case, but they lost on the merits in the United States Court of Appeals for the Fifth Circuit, and they chose not to petition this Court for review. The judgment against them became final.
“Under the rules that apply in regular cases, petitioners could not relitigate the exact same claim in a second suit. As we have said, ‘a losing litigant deserves no rematch after a defeat fairly suffered, in adversarial proceedings, on an issue identical in substance to the one he subsequently seeks to raise’ . . . . In this abortion case, however, that rule is disregarded. The Court awards a victory to petitioners on the very claim that they unsuccessfully pressed in the earlier case. The Court does this even though petitioners, undoubtedly realizing that a rematch would not be allowed, did not presume to include such a claim in their complaint. The Court favors petitioners with a victory that they did not have the audacity to seek.”
The ruling is expected to impact similar abortion restriction laws that are currently pending in other states.
Texas Attorney General Ken Paxton expressed his disappointment over the ruling.
“HB2 was an effort to improve minimum safety standards and ensure capable care for Texas women. It’s exceedingly unfortunate that the court has taken the ability to protect women’s health out of the hands of Texas citizens and their duly-elected representatives.”
Father Frank Pavone of Priests for Life issued this statement in the wake of the decision: “The Supreme Court is now the Supreme Medical Board, setting its own standards for patient care in the United States. This decision is an outrageous usurpation of legislative power and it only underscores the critical importance of electing a President who will nominate — and Senators who will confirm — justices to the Supreme Court who will adjudicate, not write the law.”
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