This morning I·CONnect (the blog of the International Journal of Constitutional Law) published a new commentary from me on Whole Women’s Health v Hellerstedt, the US Supreme Court’s recent decision striking down HB2, a Texan TRAP law. TRAP laws are Targeted Regulation of Abortion Provider laws, and have become a substantial part of anti-abortion and anti-choice efforts to restrict abortion in the United States. In this short commentary, I argue that Whole Women’s Health and particularly the contribution to the judgment by Ruth Bader Ginsburg, sharply constraints the possibilities that TRAP laws offered to undercut the constitutional right to access abortion in that jurisdiction. The whole post, which is around 1200 words, is here, and the core argument can be discerned from this passage:
In the leading judgment for the Court, Justice Breyer found that this law clearly failed the Casey test because it had the “purpose or effect” of placing undue burdens on women wanting to exercise a constitutional right without addressing an established need to regulate abortion in this way or bringing any benefits to women seeking to access abortion…While Breyer strikes these laws down, then, and while the Court’s judgment will likely lead to similar TRAP laws being struck down in other states, his judgment still leaves open the door for TRAP laws that can be established as being justified by medical evidence, or even by uncertainty about the safety of abortion.
This is why Ruth Bader Ginsburg’s short concurring opinion is so important. In it, Ginsburg states on the record and unequivocally that abortion is a safe procedure, and that restricting access to abortion means that “women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety” so that “it is beyond rational belief that H. B. 2 could genuinely protect the health of women”.
With this, and in just a page and a half of text, Ruth Bader Ginsburg may just have torpedoed this particular guerrilla tactic for some time to come.