Court sides with choice

San Francisco Chronicle - - OPINION -

The ef­fort to sup­press abor­tion rights is en­coun­ter­ing one of the biggest set­backs in decades. A Supreme Court de­ci­sion tossed out a Texas law aimed at shut­ting down clin­ics that of­fer the pro­ce­dure.

The law was de­vised as an end run around Roe vs. Wade, the 1973 court de­ci­sion that af­firmed a woman’s right to abor­tion, and sub­se­quent rul­ings. Foes re­fused to give up and de­vised a new strat­egy to reg­u­late the pro­ce­dure out of ex­is­tence by re­quir­ing costly medical stan­dards and ex­tra clinic rules.

The os­ten­si­ble pitch was safety and ex­tra pro­tec­tions for women, but the in­tent was to deny ac­cess. With abor­tion rights al­ready en­shrined by the high court, op­po­nents played up medical risk.

The court didn’t buy this strained ar­gu­ment in a 5-3 de­ci­sion, with Jus­tice Anthony Kennedy once again play­ing the swing role on the topic by join­ing a fourmem­ber lib­eral bloc op­posed by three con­ser­va­tive jus­tices. The court’s miss­ing ninth vote, cre­ated by the death of An­tonin Scalia in Fe­bru­ary, wouldn’t have changed the out­come.

The Texas law put clin­ics in the cat­e­gory of sur­gi­cal cen­ters with more ex­pen­sive equip­ment and elab­o­rate lay­outs. The ef­fect was to lay on costs that ex­ist­ing clin­ics couldn’t pay. The law also re­quired that doc­tors have ad­mit­ting priv­i­leges to nearby hospi­tals though these in­sti­tu­tions don’t al­ways is­sue such per­mis­sion.

When the law took ef­fect, the re­sults were pre­dictable and harm­ful. Nearly half of the state’s abor­tion-pro­vid­ing clin­ics closed, with huge swaths of ru­ral Texas af­fected the most. Sim­i­lar laws were passed in other states and now stand in doubt. Cal­i­for­nia, with one of the most pro­gres­sive abor­tion-rights stan­dards, isn’t af­fected.

In re­ject­ing the law, the court ma­jor­ity stuck by its past de­ci­sions. States can reg­u­late hospi­tals and doc­tors in the name of pro­tect­ing pa­tients, but they can’t put up ob­sta­cles on preg­nant women through un­nec­es­sary health rules.

Jus­tice Stephen Breyer, who wrote the ma­jor­ity opin­ion, said the Texas reg­u­la­tions “pro­vide few if any health ben­e­fits for women” and put up un­fair hurdles. Jus­tice Ruth Bader Gins­burg added her own zinger: it “is be­yond ra­tio­nal be­lief ’’ that the law sought to pro­tect women when its true in­tent was to make the pro­ce­dure more dif­fi­cult to per­form.

The le­gal win comes af­ter the dam­age was done. Clin­ics shut­tered by the 3-year-old Texas law can’t quickly re­open af­ter staffers have moved on and leases ex­pired. The pres­sure on sur­viv­ing clin­ics has led to wait­ing lists and more costly pro­ce­dures for women with ad­vanced preg­nan­cies. But for now the rul­ing stands as warn­ing from the high court on the im­por­tance of abor­tion rights.

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