Columbia Law School Professors React to Supreme Court Ruling on Abortion Case

New York, June 27, 2016—Columbia Law School professors who are leading experts in reproductive rights offer their reactions to today’s Supreme Court decision in Whole Woman’s Health v. Hellerstedt, the abortion case that successfully challenged a Texas law (HB2) that would have imposed severe restrictions on abortion clinics throughout the state of Texas. 

In a 5-3 decision, the Court ruled that the law’s admitting privileges requirement and surgical center requirement for clinics in the state constitute an “undue burden” to abortion access, and are thus unconstitutional.

Here’s what three professors have said:

Professor Katherine Franke (@ProfKFranke):

“The Supreme Court’s decision today in Whole Woman’s Health marked an unambiguous repudiation of widespread TRAP (Targeted Regulation of Abortion Providers) laws that have been passed in Texas and numerous other states as a way to indirectly deny women’s constitutional reproductive rights.  In so doing, the Court rejected the "junk science” that lay behind these laws and provided lower courts with clear guidance in how they might review future cases.  Rationality won day for women’s reproductive rights.

Justice Breyer writing for the majority in Whole Woman’s Health reaffirmed the Court’s earlier approach to reproductive rights: laws that impose a substantial burden on access to the full range of reproductive health services, including abortion, cannot survive a constitutional challenge.  In Whole Woman’s Health the Court clarified the “substantial burden” test, probing the legitimacy of the medical justification for these laws and in this case found them based more in ideology than science.

It is interesting to note that the very flaws Justice Thomas sees in the constitutional standard of review in the abortion context he regards as virtues in the religious liberty context.”

Franke is director of the Center for Gender and Sexuality Law and faculty director of the Public Rights/Private Conscience Project. She is the Chair of the Board of Directors of the Center for Constitutional Rights.

Professor Suzanne Goldberg:

“The Court’s much-anticipated ruling in Whole Woman’s Health deals a crushing blow to state efforts to restrict and close facilities that provide abortions.  It is one of the most important and far-reaching rulings ever in America’s decades-long battle over the right of women to obtain an abortion.  With this ruling, clinics around the country will now be able to operate free from laws that sought to close them down based on sham medical arguments embraced by legislatures but not supported by evidence.

These laws, including the Texas law that the Court struck down today have threatened forced closure of clinics in states around the country by their hyper-regulation of clinics, requiring providers to have admitting privileges at nearby hospitals and to function as ambulatory surgical centers. 

At issue was whether the laws imposed an “undue burden” on women’s constitutional right to abortion.  The Court flat-out rejected the state’s argument that these laws protected women’s health, saying that there was no evidence to support that view and that, instead, evidence showed that the restrictions made it harder – if not impossible – for women to access abortion in a safe and timely way.

Today’s ruling changes the landscape in the ongoing fight about abortion in the United States.  As the Court wrote, these rules ‘vastly increase the obstacles confronting women seeking abortions in Texas without providing any benefit to women’s health capable of withstanding any meaningful scrutiny.  The provisions are unconstitutional on their face[.]’”

Goldberg is director of the Center for Gender and Sexuality Law, and an expert in constitutional law, civil rights, and reproductive rights. 

Professor Gillian Metzger ’95:

“Today’s 5-3 decision in Whole Woman’s Health is a powerful defense of women’s liberty against increasing efforts by state legislatures to deny women the right to choose when to have children. The Supreme Court made clear that the right to choose is a basic constitutional right that must be afforded strong judicial protection.

Recent years have witnessed an outpouring of new legislative restrictions on abortion, all justified in the name of protecting women’s health. But these measures have had the opposite effect: they have yielded no benefits and instead have only increased health risks for women, by forcing clinics to close and causing delays as women face wait times and difficulty accessing clinics. By definitively stating that courts must assess the benefits that an abortion restriction actually produces, and also consider expert medical evidence on health risk, the Court has put a stop to such efforts to surreptitiously restrict women’s access to abortion. 

The message of the Court’s decision is clear. Women have a constitutional right to choose whether to have a child and courts are required to protect that right. The decisiveness with which the Court rejected the Fifth Circuit’s opinion below leaves no doubt that lower courts must vindicate women’s right to choose.”

Metzger is a former law clerk to Justice Ruth Bader Ginsburg ’59. Metzger’s amicus brief in the case was cited in today’s majority opinion. 

Professor Carol Sanger:

"The Supreme Court's decision in Whole Woman's Health shows at long last that there are limits on the states's authority to regulate abortion and that Planned Parenthood v. Casey has actual content.  In today's  fact-saturated decision, the Court reviewed the actual practice of abortion on the ground in light of the two statutory requirements Texas had imposed: admitting privileges for all providers and treating abortion clinics like hospital operating rooms.  Whole Woman's Health states clearly and adamantly that Texas had failed to show that these requirements provided few"if any"medical benefits to women.  In other words, the requirements  could not be justified on the grounds of improving women's health, as Texas had insisted.  The decision clarifies for lower courts evaluating other of the many restrictions placed on abortion providers, patients and facilities how to go about that task.  Real evidence matters. Real health concerns matter.  If state laws cause clinics to close leaving women within the state gasping for this form of constitutionally protected reproductive health care, women's right to choose will have been abridged.  The decision today takes both women and the law seriously."   

Sanger is an expert on abortion, motherhood, and family, who has written and spoken extensively on reproduction and the regulation of abortion.

Note: Check back later for reactions from other faculty experts.