Here is a the text of the supreme court decision on June 27, 2016 in which the court decided 5-3 to strike down a Texas law placing restrictions on abortion providers.

I have skimmed through it and am struggling to understand parts of the opinion.

Right at the beginning it is stated that the following criteria should be met:

“State has a legitimate interest in seeing to it that abortion . . . is performed under circumstances that insure maximum safety for the patient.” Roe v. Wade, 410 U. S. 113, 150. But “a statute which, while furthering [a] valid state interest, has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends,” Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 877 (plurality opinion), and “[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right,” id., at 878.

Justice Ginsburg provided a separate concurring opinion in which she said:

... Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory-surgical-center or hospital admitting-privileges requirements...

...abortion “is at least as safe as other medical procedures routinely performed in outpatient settings”. Given those realities, it is beyond rational belief that H. B. 2 could genuinely protect the health of women, and certain that the law “would simply make it more difficult for them to obtain abortions.”

When the bill was passed in Texas in 2013, I recall some Texas lawmakers in support of the bill claiming that the law would help prevent some abortions, for example:

The regulations in HB 2 will end up saving many babies, he said, "so that families can adopt them and love them and be able to cherish them.”

It seems like the bill was struck down by the Supreme Court because the bill did exactly what it was supposed to do. Perhaps if the decision was 8-0 one could argue that the Texas lawmakers should have known better and were just wasting taxpayers' time and money, but there were 3 dissenting justices, which to me, legitimizes the attempt to pass the law. Yet, I'm not fully understanding the dissenting opinions.

My question: are the dissenting opinions claiming that Texas HB2 does not present a "substantial obstacle to a woman seeking an abortion", or are they claiming that the premise is wrong and it should be OK for a law to present a "substantial obstacle to a woman seeking an abortion", or something else entirely?


1 Answer 1


Justice Thomas's position is two-pronged. First, he argues that the court has taken the wrong approach to protecting abortion all along:

I remain fundamentally opposed to the Court’s abortion jurisprudence.

He then argues that even taking Casey as precedent, the court has raised the standard that laws affecting access to abortions are judged by:

These precepts [...] transform the undue-burden test to something much more akin to strict scrutiny.

My takeaway is that he thinks jumping straight to a balancing test muddles the "undue-burden" and "legitimate interest" portions of the Casey test. He would have answered first whether these laws posed an undue burden upon women seeking abortions. If the answer there was "no", then the law only needs to pass a rational basis test. However, by immediately jumping to a test than balances the burden on women and legitimate interests of the state, he argues that a more heightened scrutiny is applied to these laws than Casey stands for.

Further, he argues that the clinics should not be able to sue to protect a right that they don't even claim belongs to them:

This suit is possible only because the Court has allowed abortion clinics and physicians to invoke a putative constitutional right that does not belong to them—a woman’s right to abortion.

Justice Alito's position rests on res judicata.

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