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What the Supreme Court's ruling on abortion restrictions in Texas could mean for Michigan

Jun 28, 2016

Yesterday's landmark ruling by the United States Supreme Court applied specifically to abortion clinics in Texas, but it could have far-reaching implications for Michigan, too.

The court's decision came in a 5-3 vote, with the majority opinion written by Associate Justice Stephen Breyer.

It held that many of the restrictions the Texas law placed on clinics, since they accounted for few tangible health or safety benefits, represented the type of undue burden the Supreme Court has long held as unconstitutional.

Some similar restrictions are in place in Michigan, but the Texas decision, Whole Woman's Health v. Hellerstedt, has no direct bearing on state-level restrictions in the rest of the country.

Lisa Harris is a University of Michigan obstetrician-gynecologist, and is active in the women's reproductive rights community. She spoke to us today on Stateside.

Harris says legal challenges to abortion clinic restrictions in Michigan could come next.

"I do want to make clear, though, that this decision does not automatically make Michigan or any other state's laws unconstitutional,."

"I do want to make  clear, though, that this decision does not automatically make Michigan or any other state's laws unconstitutional," Harris told Stateside today. "There would need to be a new legal challenge." 

Licensing restrictions in Michigan

Harris sees a potential challenge to Michigan's requirement that abortion clinics performing 120 or more surgical abortion procedures annually be licensed as freestanding surgical outpatient facilities. 

Many medical professionals and reproductive rights advocates say the changes resulting from such restrictions often have little to do with safety or medicine. 

"Both the admitting privileges and surgical center requirements, on their face, look like things that would make abortion safer, so we do need to talk about that," said Harris. "The changes required, in most cases, don't have any clinical relevance to the kinds of care that are involved in abortion care."

Michigan does not require that all doctors at facilities providing abortions have hospital admitting privileges -- something that was required in Texas -- but the surgical-center requirement has led some to wonder whether the Texas ruling could result in legal challenges to restrictions on abortion clinics here.

"The Texas decision was incredibly important, not just because it can help restore access in Texas, but because of the principles it laid out for what kinds of restrictions are going to be acceptable and what are not," Harris said. "I could absolutely see challenges to some of Michigan's laws, for example, our surgical center requirement." 

Other strange restrictions 

Harris said she's run across other restrictions that require extensive renovations to some clinics.

She recalled two Michigan abortion clinics were required to pay for renovations that she said did nothing to protect patients. The clinics had to construct a firewall between administrative and clinical areas.

"And I mean an actual, literal firewall. Not a computer firewall, but a wall that went from the floor to the ceiling that would stop a fire should a fire start in a clinical area," she said. "And that was based on the assumption that general anesthetic was being used, and that specific kinds of anesthetic agents that are flammable are being used. And neither is the case here in any of Michigan's abortion clinics."

Restrictions lead to decrease in access in Texas

The restrictions on clinics in Texas resulted in a vast decrease in the availability of abortion statewide.

The number of clinics providing abortions in Michigan also decreased in the wake of Public Act 499 of 2012, which instituted the outpatient surgical facility requirements. 

While the Supreme Court ruled the Texas requirement unconstitutional, others say restrictions like it are necessary as a matter of safety and compliance.

In a statement, Right to Life of Michigan said the decision "will continue to allow substandard and dangerous abortion clinics to operate throughout the country."

In a statement, Right to Life of Michigan said the decision "will continue to allow substandard and dangerous abortion clinics to operate throughout the country." 

The Supreme Court disagreed. It held instead that the restrictions resulted in less access to abortion, which in of itself posed an undue burden to women seeking the procedure.

From Breyer's opinion:

In our view, the record contains sufficient evidence that the admitting-privileges requirement led to the closure of half of Texas’ clinics, or thereabouts. Those closures meant fewer doctors, longer waiting times, and increased crowding.

The New York Times yesterday published a map showing distances in a given area from the nearest abortion provider.

Several areas in Michigan including the entire Upper Peninsula, were shown to be 40 miles or more from the nearest abortion provider.

It's unclear if and when Michigan's restrictions on abortion clinics could see a legal challenge, and what those restrictions could mean. In Texas, the effects of the restrictions were more clear-cut, and data in Michigan is lacking, Harris said. 

"In Michigan, we don't have the same detailed data that we have in Texas on the effect of a surgical center requirement," she said. "But before and after, we did see about a one-third reduction in the number of clinics, from about 30-something to about 20-something. We can't tie that directly to surgical center requirements, but there has been a decline."