What the Supreme Court Abortion Ruling Means for Pennsylvania

Pro-abortion rights protesters rally outside the Supreme Court in Washington, Wednesday, March 2, 2016.

A ruling by the Supreme Court today overturning parts of an abortion regulation law in Texas has ties to Pennsylvania.

The Supreme Court specifically cited the case of Philadelphia’s Kermit Gosnell in its ruling today on Whole Women’s Health v. Hellerstedt. “Gosnell’s behavior was terribly wrong,” the court wrote in its majority opinion. “But there is no reason to believe that an extra layer of regulation would have affected that behavior.”

Justice Stephen Breyer wrote the majority opinion, joined by Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito dissented.

“The Court has affirmed what we already knew: strategically over-regulating healthcare facilities that provide abortion care so that they are forced to close does nothing to protect women’s health, despite the disingenuous claims of anti-abortion lawmakers, in Texas and here in Pennsylvania,” said Sue Frietsche, senior staff attorney at the Philadelphia-based Women’s Law Project (which had its amici brief cited in Ginsburg’s concurrence). “These mean-spirited, misguided attacks on women’s health are plainly unconstitutional and they need to stop.”

The Texas law, passed in 2013, required abortion doctors to have admitting privileges at a nearby hospital, and mandates all clinics in the state to meet the standards for ambulatory surgical centers — including regulations concerning buildings, equipment and staffing. It shrunk the number of abortion clinics in the state from 41 to 18. The Supreme Court ruled those parts of the Texas law to be unconstitutional.

“We conclude,” Justice Breyer wrote, “that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes. Each places a substantial obstacle in the path of women seeking a pre-viability abortion, each constitutes an undue burden on abortion access, and each violates the Federal Constitution.”

In 2011, Pennsylvania passed a law, S.B. 732, that contains similar regulations to one in Texas. It required clinics to abide by the same rules that govern ambulatory surgical facilities. Clinics could request an exemption, but abortion providers said it required them to provide costly upgrades to their facilities that would not help patient health. That did happen at one independent abortion clinic in Center City, the Philadelphia Women’s Center.

“It had a tremendous impact on us,” said Amanda Kifferly, director of patient advocacy at the Women’s Centers. “It changed reporting rules, required us to have different nurses on call at all times even when we didn’t have any patients. … It was exhausting, it was expensive and it was really for no reason. We haven’t seen a change. We know that abortion is extremely safe. Changing the ceiling tiles hasn’t really changed the abortion experience for our patients.” Ultimately, the Philadelphia Women’s Center was able to remain open — but Kifferly says it was a huge burden on the clinic.

The Pennsylvania law was passed in the wake of Gosnell, who is imprisoned for life after being convicted of killing three babies who were born alive at his West Philadelphia abortion clinic. Advocates for the law said it would prevent similar incidents from happening.

Gosnell, though, was convicted of violating laws already on the books. Then-Gov. Tom Corbett admitted as much in 2011: “This doesn’t even rise to the level of government run amok,” he said in a release. “It was government not running at all. To call this unacceptable doesn’t say enough. It’s despicable.” The Supreme Court’s majority did not find the argument that these new regulations would protect women’s health convincing in the Texas case.

“This decision erodes States’ lawmaking authority to safeguard the health and safety of women and subjects more innocent life to being lost,” Texas Gov. Greg Abbott said in a statement. “Texas’ goal is to protect innocent life, while ensuring the highest health and safety standards for women.” The 5-3 decision, however, said Texas admitted during oral arguments there was “no evidence in the record” that the Texas regulations helped any women obtain better treatment.

What does this mean for Pennsylvania? Ginsburg, who wrote a concurring opinion, says laws like the one in Texas should be struck down across the country. “Targeted Regulation of Abortion Providers laws like H.B. 2 [the Texas law] that ‘do little or nothing for health, but rather strew impediments to abortion,’ cannot survive judicial inspection,” she wrote.

“The surgical-center requirement also provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an “undue burden” on their constitutional right to do so,” Breyer wrote. Pennsylvania’s law is not overturned by the Texas case, but several similar laws are currently under legal challenge in other states. Observers say similar laws in other states are expected to fall, eventually, due to today’s ruling.

Pennsylvania’s House of Representatives recently passed a bill banning abortion after 20 weeks. If it passes the Senate, however, Gov. Tom Wolf said he would veto it.

“I think it was an overdue victory,” Kifferly said. “It’s really great to see. We hope that the makers see what the highest court said, and see that these types of laws aren’t going to get women anywhere.”

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