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On a sunny Monday morning, as journalists sprinted out of the U.S. Supreme Court building, decision in hand, the crowds gathered out front exploded into cheers.
It was 2016, and the high court had just overturned Texas’ latest efforts to restrict abortion access, ruling that the requirements in a 2013 law placed an undue burden on people seeking to exercise their constitutional right to an abortion.
Just six years later, on Friday, the Supreme Court ruled there was no constitutional protection for abortion — and thus, the “undue burden” standard that had so recently been upheld was now moot.
This complete reversal of the precedents set by Roe v. Wade in 1973 and Planned Parenthood v. Casey in 1992 did not come as a surprise, and not just because Politico leaked a draft of the opinion in early May.
The court’s conservative justices have been building their case for years, including in dissenting opinions tied to that 2016 Texas case. Now, with a conservative majority on the bench, that ruling became yet another piece of evidence to justify overturning Roe and Casey once and for all.
Justice Stephen Breyer, who authored the 2016 majority opinion, dissented to Friday’s ruling along with the two other remaining liberal justices.
“The court reverses course today for one reason and one reason only: because the composition of this Court has changed,” the justices wrote.
The “undue burden” test
Texas was the birthplace of Roe v. Wade, the 1973 case that sought to overturn Texas’ abortion laws and led Justice Harry Blackmun to determine that pregnant people nationwide had a constitutional right to abortion up to the point of fetal viability.
Two decades later, surprising many, the U.S. Supreme Court upheld the central tenets of Roe v. Wade in a Pennsylvania case known as Planned Parenthood v. Casey. That case made it clear that a state’s abortion regulations could not put an “undue burden” on people seeking abortions.
“An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability,” the justices wrote.
In recent years, Texas lawmakers and anti-abortion advocates, who are sometimes one and the same, have dedicated themselves to testing the limits of these standards.
In 2013, the state passed an omnibus abortion bill that banned abortions after 20 weeks of gestation, imposed new regulations on medication abortion, required abortion providers to have admitting privileges at nearby hospitals and required all abortion facilities to meet the regulatory standards for ambulatory surgical centers, arguing that these requirements protected patient health and safety.
The bill was initially blocked by Sen. Wendy Davis’ famous 13-hour filibuster, but it eventually passed both houses and was signed into law by then-Gov. Rick Perry.
Before the law even went into effect, abortion providers filed a legal challenge, claiming that the majority of the state’s 40 clinics would shut down if these requirements went into effect, creating an undue burden on Texans seeking abortions.
From the start, the case focused on the definition of that term: “undue burden.” U.S. District Judge Lee Yeakel and the 5th U.S. Circuit Court of Appeals disagreed at various points in the yearslong legal proceedings, specifically disputing whether driving more than 150 miles to access an abortion clinic qualified as an “undue burden” under the framework laid out in Planned Parenthood v. Casey.
By the time a legal challenge known as Whole Woman’s Health v. Hellerstedt made it to the U.S. Supreme Court in 2016, more than half of Texas’ abortion clinics had closed. During oral arguments, Justice Samuel Alito, who authored Friday’s majority opinion, questioned whether those clinics closed because of the new requirements.
“Was that their burden?” he asked.
But in the end, Justice Anthony Kennedy sided with his liberal colleagues in a 5-3 ruling that determined the requirements did constitute an undue burden on abortion-seekers in Texas.
Further, the ruling instructed courts on how to determine whether abortion regulations rose to the level of undue burden, by balancing the potential benefits — as determined by evidence-based scrutiny, not legislative proposal — with the potential burden on abortion-seekers.
Whole Woman’s Health v. Hellerstedt was heralded as a significant victory for abortion rights advocates, leading some to hope, optimistically, that this might settle the “undue burden” question once and for all.
But not everyone was so sure. Alito, Justice Clarence Thomas and Chief Justice John Roberts dissented.
In his dissent, Thomas made it clear that he remained “fundamentally opposed to the Court’s abortion jurisprudence.” Thomas claimed that the court had “bent the rules” for certain rights, including abortion, over the years, leaving the law “so riddled with special exceptions for special rights” that the judiciary had forfeited the premise that their decisions were bound by the rule of law.
“After disregarding significant aspects of the Court’s prior jurisprudence,” Thomas wrote, “the majority applies the undue-burden standard in a way that will surely mystify lower courts for years to come.”
Thomas warned that, while the decision would prompt some to claim victory, it “will stiffen opponents’ will to object.”
A new era of the court
In November 2016, less than six months after that landmark victory for abortion providers, abortion opponents got something much more significant than a court order: They got a president.
Donald J. Trump, a former abortion rights-supporting Democrat from New York, proved to be a godsend to abortion opponents.
After Republicans blocked President Barack Obama’s nomination of Merrick Garland, Trump appointed Neil Gorsuch to replace Antonin Scalia the month after he was sworn in. When Kennedy, a reliable swing vote on abortion, retired in 2018, Trump replaced him with Brett Kavanaugh.
And when Ruth Bader Ginsburg died in September 2020, just two months before the 2020 presidential election, Trump nominated Amy Coney Barrett, securing a 6-3 conservative majority.
This emboldened some state legislatures to begin passing more and more aggressive anti-abortion measures than ever before.
In Texas last year, the Legislature passed Senate Bill 8, which empowered private citizens to bring civil lawsuits against anyone who “aids or abets” in an abortion after about six weeks of pregnancy.
The Supreme Court declined to block that law on several occasions, which the liberal justices argued in their dissent Friday amounted to “nullifying Roe and Casey ahead of schedule in the Nation’s second largest State.”
And then, in its latest term, the Supreme Court agreed to hear Dobbs v. Jackson Women’s Health Organization, a case about a 15-week abortion ban in Mississippi, taking the opportunity to reconsider Roe and Casey entirely. On Friday, in a 6-3 ruling, the court overturned those precedents, allowing states to set their own laws regulating abortion.
“Roe was egregiously wrong from the start,” Alito, who authored the opinion, wrote. “Its reasoning was exceptionally weak and the decision has had damaging consequences.”
Although Roe is the higher-profile case, Alito spent much of the draft unpacking Casey and its “arbitrary undue burden test,” citing Whole Woman’s Health v. Hellerstedt as a prime example of the “confusion and disagreement” he said that metric had created.
He pointed to the disagreement between courts over whether Texas’ restrictions were permissible, saying the line has “proved to be impossible to draw with precision.” The Supreme Court’s own handling of that case “confirmed Chief Justice (William) Rehnquist’s prescient diagnosis that the undue-burden standard was ‘not built to last,’” Alito wrote.
In a concurring opinion, Thomas cited his own dissent in Whole Woman’s Health v. Hellerstedt, in which he criticized what he saw as the court demanding “extra justifications for encroachments … on preferred rights.”
In Friday’s opinion, Thomas also opened the door to potentially overturning other Supreme Court rulings related to contraception and same-sex marriage, advancing his long-held desire to reverse the due process argument that underpins all these opinions.
“He’s saying ‘This opinion doesn’t do it because people haven’t asked us to, but I think people should ask us and we should reconsider this entire area of law,’” Emily Berman, associate professor of law at the University of Houston Law Center, told The Texas Tribune.
Going forward, states will now set their own laws on abortion, free from the restrictions that governed the issue for nearly 50 years. When some of those laws are inevitably challenged in court, they will be granted the same “strong presumption of validity” as other health and welfare laws, Alito said.
Laws governing abortion “must be sustained” if they serve legitimate state interests, which Alito said could include respect for and preservation of prenatal life, the protection of maternal health and safety and the mitigation of fetal pain.
At the time of the Whole Woman’s Health v. Hellerstedt case, the fear was that the second-largest state in the country could be left with less than a dozen abortion clinics. But now, the state will likely be left with none, nor any in most of its neighboring states.
In the opinion, Alito seems to accept the fact that this new ruling will not settle the abortion debate any more than Roe, Casey or Whole Woman’s Health v. Hellerstedt did.
“This Court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on,” he wrote.
Disclosure: Planned Parenthood, Politico and University of Houston have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.
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