On Monday, June 27, 2016, the Supreme Court decided that Texas HB2 was unconstitutional, eliminating requirements for Texas doctors to have hospital admitting privileges near their clinics and for abortion clinics to become surgical facilities. Many fine summaries of this landmark decision popped up within hours of the decision. See Planned Parenthood’s press release and “The Court once again makes the ‘undue-burden’ test a referendum on the facts” on SCOTUS Blog.
On Monday, the Supreme Court demanded that laws be supported by facts.
What struck me most about the majority opinions written by Justices Breyer and Ginsburg was the lack of assertion and conjecture so often found in the court’s previous abortion case decisions. Recall Justice Kennedy’s 2007 Gonzales v. Carhart opinion upholding Congress’ Partial-Birth Abortion Act of 2003: “We find no reliable data” that abortion causes women emotional harm, but we find it nonetheless “self-evident” and “unexceptional to conclude” that “some women” who choose to terminate their pregnancies suffer “regret,” “severe depression,” “loss of esteem,” and other ills. “Some women”? Did we really uphold a law based upon this kind of neo-paternalistic, fuzzy thinking?
Not this time out. The Supreme Court put future litigants on notice: Facts matter, science matters, logic matters, common-sense inference matters. Unsupported assertions? Nah. Consultants parading as scientists? Not so much. In workmanlike fashion, dealing with abortion in a frank and unapologetic way, the majority read into law 15 separate District Court findings of fact gleaned from stipulations, depositions, and testimony. Further, the court chastised Texas for “attempting to label an opposing expert witness, Doctor Grossman, as irresponsible.” Breyer writes, “making a hypothesis — and then attempting to verify that hypothesis with further studies, as Dr. Grossman did — is not irresponsible. It is an essential element of the scientific method. The District Court’s decision to credit Dr. Grossman’s testimony was sound, particularly given that Texas provided no credible experts to rebut it.” Wow — The Supremes defend the scientific method. Color me happy.
Continuing to hold litigants to real-world data to support their assertions, Breyer states, “We add that, when directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.”
Justice Ginsburg, ever our North Star, firmly planted in constitutional law the fact that abortion is a safe procedure. A Washington Post article sums it up nicely:
She dismisses Texas’s argument about its interest in protecting “the health of women who experience complications from abortions,” by countering that “complications from an abortion are both rare and rarely dangerous.” She recites a laundry list of studies of how safe abortion is, and then she delivers the message: “So long as this Court adheres to Roe v.Wade … and Planned Parenthood of Southeastern Pa. v.Casey … Targeted Regulation of Abortion Providers laws like H. B. 2 that ‘do little or nothing for health, but rather strew impediments to abortion … cannot survive judicial inspection.” [Emphasis added.]
She is writing into law the factual finding that abortion is safe, full stop.
So, where does this refreshing change of focus lead us? We should have the will to support more research, and, thus armed, head back to state legislatures and courts again, and again, and again. Here’s my starting wish list of existing laws that should fall in the face of evidence:
- doctors required to read to patients scientifically erroneous statements about pregnancy and abortion
- waiting periods
- mandatory ultrasound
- ban on intact D & E procedure
It was important that Monday’s decision did not just strike down the Texas restrictions as unconstitutional, but also instructed the federal courts to demand that laws be supported by facts. “The statement [by the 5th U.S. Circuit and advanced by the state of Texas] that legislatures, and not courts, must resolve questions of medical uncertainty is also inconsistent with this Court’s case law,” wrote Breyer. “Instead, the Court, when determining the constitutionality of laws regulating abortion procedures, has placed considerable weight upon evidence and argument presented in judicial proceedings.”
What a difference a day makes.