us-supreme-court abortion
What do the dissents argue in Whole Woman&#39;s Health v. Hellerstedt?
<p><a href="http://www.supremecourt.gov/opinions/15pdf/15-274_p8k0.pdf" rel="nofollow noreferrer">Here is a the text</a> of the supreme court decision on June 27, 2016 in which the court decided 5-3 to strike down a Texas law placing restrictions on abortion providers.</p>
<p>I have skimmed through it and am struggling to understand parts of the opinion.</p>
<p>Right at the beginning it is stated that the following criteria should be met:</p>
<blockquote>
<p>“State has a legitimate interest in seeing to it that abortion . . . is performed under circumstances that insure maximum safety for the patient.” Roe v. Wade, 410 U. S. 113, 150. But “a statute which, while furthering [a] valid state interest, has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends,” Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 877 (plurality opinion), and “[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right,” id., at 878.</p>
</blockquote>
<p>Justice Ginsburg provided a separate concurring opinion in which she said:</p>
<blockquote>
<p>... Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory-surgical-center or hospital admitting-privileges requirements...</p>
<p>...abortion “is at least as safe as other medical procedures routinely performed in outpatient settings”. Given those realities, it is beyond rational belief that H. B. 2 could genuinely protect the health of women, and certain that the law “would simply make it more difficult for them to obtain abortions.”</p>
</blockquote>
<p>When the bill was passed in Texas in 2013, I recall some Texas lawmakers in support of the bill claiming that the law would help prevent some abortions, <a href="https://www.texastribune.org/2013/07/13/texas-abortion-regulations-debate-nears-climax/" rel="nofollow noreferrer">for example</a>:</p>
<blockquote>
<p>The regulations in HB 2 will end up saving many babies, he said, &quot;so that families can adopt them and love them and be able to cherish them.”</p>
</blockquote>
<p>It seems like the bill was struck down by the Supreme Court because the bill did exactly what it was supposed to do. Perhaps if the decision was 8-0 one could argue that the Texas lawmakers should have known better and were just wasting taxpayers' time and money, but there were 3 dissenting justices, which to me, legitimizes the attempt to pass the law. Yet, I'm not fully understanding the dissenting opinions.</p>
<p>My question: are the dissenting opinions claiming that Texas HB2 does not present a &quot;substantial obstacle to a woman seeking an abortion&quot;, or are they claiming that the premise is wrong and it should be OK for a law to present a &quot;substantial obstacle to a woman seeking an abortion&quot;, or something else entirely?</p>

<p>Justice Thomas's position is two-pronged. First, he argues that the court has taken the wrong approach to protecting abortion all along:</p>

<blockquote>
  <p>I remain fundamentally opposed to the Court’s abortion
  jurisprudence.</p>
</blockquote>

<p>He then argues that even taking <em>Casey</em> as precedent, the court has raised the standard that laws affecting access to abortions are judged by:</p>

<blockquote>
  <p>These precepts [...] transform the undue-burden test to
  something much more akin to strict scrutiny.</p>
</blockquote>

<p>My takeaway is that he thinks jumping straight to a balancing test muddles the "undue-burden" and "legitimate interest" portions of the <em>Casey</em> test. He would have answered <em>first</em> whether these laws posed an undue burden upon women seeking abortions. If the answer there was "no", then the law only needs to pass a rational basis test. However, by immediately jumping to a test than balances the burden on women and legitimate interests of the state, he argues that a more heightened scrutiny is applied to these laws than <em>Casey</em> stands for.</p>

<p>Further, he argues that the clinics should not be able to sue to protect a right that they don't even claim belongs to them:</p>

<blockquote>
  <p>This suit is possible only because the Court has allowed
  abortion clinics and physicians to invoke a putative constitutional
  right that does not belong to them—a woman’s
  right to abortion.</p>
</blockquote>

<p>Justice Alito's position rests on <em><a href="https://en.wikipedia.org/wiki/Res_judicata" rel="nofollow">res judicata</a></em>.</p>
