The Facts Win Out on Abortion

SOMEONE landing from Mars on Monday and coming upon Justice Stephen G. Breyer’s majority Supreme Court opinion in the Texas abortion case would have had no hint of the decades-long battle over women’s right to abortion and the dogged efforts by states to put obstacles in their way.

There is no poetry in the 40-page opinion, which strikes down a Texas law that would have closed most abortion clinics in the state in the name of protecting women’s health.

There was no mystery in what the five justices in the majority, crucially including Justice Kennedy, accomplished this time, nor in the decision’s impact. By holding the state’s asserted rationale for its clinic-decimating regulations up to the light and finding it specious and counterproductive, the court has shut down one of abortion opponents’ main recent strategies: enacting “targeted regulation of abortion providers” laws that impose on doctors who perform abortions special restrictions not placed on doctors who do procedures of equal or greater risk.

“Specious” is my word, not the court’s. Justice Breyer was careful not to call out the Texas Legislature for placing a health-related veneer on laws whose true intent is to make access to abortion more difficult. Judges are extremely reluctant to accuse legislatures of acting in bad faith, and Justice Breyer didn’t have to do that. He simply had to show, carefully and methodically, the “virtual absence of any health benefit” from requiring doctors who provide abortions to obtain admitting privileges at local hospitals or requiring abortion clinics to retrofit themselves as mini-hospitals at huge cost.

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