The next time a state wants to pass a law governing abortion providers it is going to have to be able to prove in court that it is necessary.
That is what experts say is the biggest ramification of the Supreme Court’s ruling Monday that strikes down Texas’ abortion law. Meanwhile, states that already have laws on the books similar to Texas’ can expect a legal challenge that may lead to them being overturned.
States can still pursue laws identical to Texas’ measure, but will now have to provide studies and other evidence that the regulations of abortion clinics and doctors are necessary.
States will have to do a “tremendous amount of fact-finding on the front end, with an eye towards litigation in the future and understanding there is a good chance that their laws will be challenged in court,” said Elizabeth Slattery, a legal fellow at the right-leaning Heritage Foundation.
The 2013 Texas law required abortion clinics to meet ambulatory surgical center requirements and physicians who perform abortions to have admitting privileges at a local hospital.
The court ruled 5-3 that the requirements created an “undue burden” on women getting an abortion. Justice Steven Breyer wrote in the majority opinion that there was no evidence the requirements would benefit women who need an abortion.
The ruling does not explicitly prohibit another state from crafting an identical law, but it does come with new requirements for legislatures.
If you are saying this [legislation] is for the benefit of women then you have to have evidence to prove that,” said Alina Salganicoff, vice president and director of women’s health policy for the nonpartisan Kaiser Family Foundation.
The ruling is far different from the landmark ruling on gay marriage last year. That ruling found that any law banning gay marriage was unconstitutional, leaving no wiggle room.
In this abortion case, a state can pass a law as long as they can prove it was needed.
Breyer wrote that during oral arguments lawyers for Texas couldn’t come up with “a single instance in which the new requirement would have helped even one woman obtain better treatment.”
Breyer also pointed to evidence that major complications were exceedingly rare from abortions. He pointed to five peer-reviewed studies on abortions in the first trimester, showing that the highest rate of complications was less than one-quarter of 1 percent.
It remains unclear what evidence exactly a state would have to provide to uphold a law holding clinics to ambulatory surgical center standards and doctors have admitting privileges at a local hospital.
“It would have to be stronger than the body of evidence already out there,” Salganicoff said.
Slattery added that specifics would “depend on what kind of regulation you are dealing with.”
“It seems like under the [Supreme Court’s] ruling now [lower] courts are going to be instructed to require a lot more from the state,” she said.
But what about the states that have laws already on the books that resemble the Texas measure?
Currently there are 22 states that have similar licensing standards for abortion clinics that resemble Texas’ law that providers meet ambulatory surgical center standards, according to data as of June 1 from the Guttmacher Institute, a think tank that supports abortion rights.
However, not all of the 22 states simply require the clinic to meet the same standards as a surgical center. About 11 states regulate the size of procedure rooms and another 10 specify the width of corridors, Guttmacher said.
In addition, there are 14 states that require abortion providers to have at least some affiliation with a local hospital.
Currently five of those 14 states require that providers have admitting privileges, eight states say they have to have either admitting privileges or some other arrangement that includes an agreement with another physician that does have admitting privileges.
There is one state, Mississippi, which requires an abortion provider to either be a board-certified obstetrician-gynecologist or eligible for certification, according to Guttmacher.
State laws similar to Texas’ provision are likely to be challenged in court, and some already are, Slattery said.
Whether or not they are overturned would depend on the specific case.
The ruling only applied to targeted laws on abortion providers and clinics, and not other state laws regulating different aspects of abortion, Salganicoff said.
For instance, there are laws banning abortion at 20 weeks of gestational age and laws requiring women to get an ultrasound before having an abortion, just to name a few.
“There [are] still more than 400 laws introduced since January across the country,” Salganicoff said. “There is a tremendous amount of legislative activity.”
