The problems with the Supreme Court's abortion industry regulations decision

Yesterday, in the case of Whole Woman’s Health v. Hellerstedt, the U.S. Supreme Court struck down two abortion-related measures in Texas. One requires that doctors who perform abortions have admitting privileges at a local hospital in order to ensure continuity of care in the event of complications. The other requires that abortion centers meet the same health and safety standards as other facilities that perform outpatient surgery.

Both of these are reasonable efforts to safeguard the health of women. The Court, in a 5-3 vote, has now ruled them unconstitutional. Justice Stephen Breyer’s majority opinion claims that the two measures improperly impose an “undue burden” on women seeking abortion, a standard for judging abortion-related laws that the Court had previously invented and applied in its 1992 Planned Parenthood v. Casey decision.

Justice Samuel Alito, in a dissenting opinion joined by Chief Justice John Roberts and Justice Clarence Thomas, blasts yesterday’s decision for violating “settled procedural rules” and for failing (and for hardly even trying) to establish that the Texas provisions actually impose any “undue burden.” Alito writes: “The Court’s patent refusal to apply well-established law in a neutral way is indefensible and will undermine public confidence in the Court as a fair and neutral arbiter.” The majority, in short, went far out of its way to reach the judgment it wanted to reach.

Justice Thomas also offered a separate dissent. While stressing that he remains “fundamentally opposed to the Court’s abortion jurisprudence,” Thomas notes that “even taking Casey [and its "undue burden" criterion] as the baseline … the majority [in yesterday's Whole Woman's Health decision] radically rewrites the undue-burden test.” The Court, he explains, applies precepts that “are nowhere to be found in Casey or its successors” in order to strike down Texas’s provisions. Thomas concludes, quoting the late Justice Antonin Scalia, that the decision “exemplifies the Court’s troubling tendency ‘to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue.’”

The fundamental problem is that, beginning with Roe v. Wade in 1973, the Court has been in the business of creating abortion policy (specifically, a policy of abortion-on-demand) and imposing it on the nation—even though there is no constitutional basis for such action. Whole Woman’s Health v. Hellerstedt is a clear step in the wrong direction.

Yesterday’s decision underscores the necessity of having Supreme Court justices who apply the Constitution as it actually is. Only then will the Court respect the right of the American people, through their elected representatives, to enact laws that protect women and unborn children and that hold the abortion industry accountable.