N.C. should hear high court’s message on abortion

The Observer editorial board

Abortion rights activists embrace after Monday’s Supreme Court ruling.
Abortion rights activists embrace after Monday’s Supreme Court ruling. GETTY

The U.S. Supreme Court struck down House Bill 2 on Monday, and N.C. legislators should pay attention.

No, not North Carolina’s House Bill 2. This one belongs to Texas, but the court’s rejection of it nonetheless sends an important message to N.C. lawmakers who continually want to strip away women’s ability to end their pregnancies.

The 5-3 ruling in Whole Woman’s Health v. Hellerstedt threw out two key provisions of a Texas law, saying they put an undue burden on women seeking abortion. Texas had passed the law in 2013, requiring that doctors who perform the procedure have admitting privileges at a nearby hospital and that clinics meet the more sophisticated standards of ambulatory surgical centers.

It is arguably the most important abortion-related ruling since the court’s Casey decision in 1992, because it gives that case’s “undue burden” standard some specificity, and some teeth. In doing so, it signals to legislators in North Carolina and around the country that they will have to prove abortion restrictions are vital to the health of the mother to justify them.

There are, no doubt, abortion-rights opponents who truly believe they are helping women with their approach. But for many state legislatures, including North Carolina’s, the “protecting women” argument is frequently a charade used to chip away at a constitutional right confirmed by the Supreme Court 43 years ago.

North Carolina has done its share of the chipping. The state’s 72-hour waiting period is tied for the longest in the nation. And the government collects ultrasound images of women who have an abortion after 16 weeks. Other N.C. impositions, like requiring a doctor to narrate a live ultrasound to the woman whether she wants it or not, have been thrown out.

Monday’s opinion, written by Justice Stephen Breyer, tells legislators that their opinions about abortion are insufficient. It puts the emphasis back on the facts about the relative safety of the procedure and the actual impact of new restrictions.

Breyer pointed out that abortion in Texas is “extremely safe” and so the law was not helping address a health-related problem.

The disputed law “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.

Abortion is an intrinsically challenging issue for courts and regular people alike, because it requires balancing two legitimate interests – a woman’s freedom and dignity and a fetus’ life. Casey’s “undue burden” standard was about striking that balance. Monday’s ruling puts more concrete parameters around the phrase.

The opinion “ensures that both sides will have to collect better proof of whether abortion hurts or helps women,” Florida State University law professor Mary Ziegler wrote on Scotusblog on Monday. Both sides “will have to make their case to the courts and to the public. It will no longer be enough for legislatures to claim that they have women’s best interests in mind.”

That’s a good thing, because they often don’t.