It’s fitting that the U.S. Supreme Court issued its ruling in Whole Woman’s Health v. Hellerstedt—the lawsuit that sought to determine the constitutionality of Texas’s omnibus abortion bill, HB2—almost exactly three years to the day after Wendy Davis’s historic filibuster.
Davis famously stood for thirteen hours on the floor of the Texas Senate to kill a version of the bill on the last day of a legislative special session. Of course, the Republican majority later called a second special session and passed the measure anyway.
But what happened that day in June 2013 was unprecedented in the state’s political history. Thousands of people—the majority of them wearing orange, the color arbitrarily assigned to opponents of the abortion law (supporters wore blue)—gathered at the Capitol in the days leading up to Davis’s filibuster. The day of the filibuster, as procedural gamesmanship removed her from the floor and led to a vote of the Texas Senate being called just minutes before the midnight deadline, those orange-clad thousands shouted, screamed, and drowned out the voices of the lawmakers, leading to the bill’s defeat. As dramatic events go, it was the sort of thing you can’t script, which is probably why the livestream of the event drew hundreds of thousands of eyeballs from around the world, capturing attention as if was a live sports event. Ultimately, that’s what it was.
Have seen nothing like this in #txlege in 22 years. Not even close. Waiting for someone to yell "Attica."
— Evan Smith (@evanasmith) June 26, 2013
In the days after the filibuster, it felt more like pro wrestling: thousands showed up in orange and blue, shouting and waving signs as lawmakers made their impassioned arguments on the floor, but the outcome itself was essentially pre-scripted. Sure enough, by mid-July 2013, HB2 passed and was signed into law.
The effect of all of that, for opponents of the law, was numbing. They spent weeks hearing compelling arguments ignored and scientific testimony disregarded. Meanwhile, on the floor of the House, bored lawmakers played Candy Crush on their phones as colleagues turned to increasingly desperate measures to make their points. The arguments were ignored. Everybody already knew which way they would vote.
In March of this year, as attorneys representing both Texas and a group of abortion providers led by Whole Woman’s Health argued before the Supreme Court, most of the votes were again pre-determined: Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor, and Stephen Breyer were solid votes against HB2, while Clarence Thomas, Samuel Alito, and Chief Justice John Roberts were clear votes to uphold the law. Which meant, ultimately, that all of the arguments—not just from the attorneys, but from the other justices—were directed at Justice Anthony Kennedy.
Kennedy has long been considered SCOTUS’ swing vote, but on abortion, he’s tended to side with the high court’s more conservative justices. So as Whole Woman’s Health v. Hellerstedt wound its way up to the Supreme Court, a cottage industry devoted to parsing what Kennedy really believed about abortion rights emerged.
So for the first time in the entire life of HB2, the outcome would all come down to which side had the better argument. When abortion providers first challenged the law in court, the federal judge who heard the case, Lee Yeakel, was inclined to side against HB2; when Texas appealed that decision to the 5th Circuit Court of Appeals, the appellate court’s conservative makeup made it almost a foregone conclusion that the court would approve the law. Things got more interesting as the Supreme Court issued a stay on HB2, preventing it from going into effect immediately—at that point, for the first time since Wendy Davis wore pink sneakers, the outcome of the law was uncertain.
In the Supreme Court, the arguments made by the attorney for the plaintiffs weren’t drastically different from ones made by lawmakers, experts, and citizens as the bill moved through the Texas Lege. During the debate around HB2, those challenges were rhetorical: it didn’t really matter if the state had good answers to them, because the law was going to pass anyway. But at the Supreme Court level, those questions required answers.
And this morning, by a 5-3 margin, the Supreme Court struck down two major provisions of HB2, saying that the bill’s requirements put an undue burden on Texas women. According to the justices, clinics do not need to meet the standard of an ambulatory surgical center and doctors at clinics don’t have to have full admitting privileges at nearby hospitals in order to protect women’s health. (A third provision, which banned abortion after 20 weeks of pregnancy, was never challenged.)
Although the immediate effects of the court’s decision will be subtle, the long-term implications will extend beyond new abortion clinics. The court’s ruling signifies that the needle has moved on abortion access not just in Texas, but in the United States. It’s possible that lawmakers in the 2017 Legislature could find another way to work around this SCOTUS ruling, but the writing is on the wall as to where the court stands now.
Back in 2013, even the conservative lawmakers who pushed for HB2 were anticipating a Supreme Court challenge, and Representative Jodie Laubenberg, who co-authored the bill in the House, seemed eager for the opportunity to have the law affirmed at that level. In 2017, though, it’s hard to imagine there’ll be much political will to push abortion restrictions that most likely only have a three-member constituency on the court in its current iteration.
The decision goes further than Texas too. We’re not the only state to have legislators who sought to impose ambulatory surgical center requirements or admitting privileges, and a precedent-setting SCOTUS decision means that similar laws in the rest of the country could be considered equally unconstitutional. What started here changed the rest of the country.
So though challenges to the bill seemed almost futile three years ago, the argument that HB2 posed an undue burden on women has finally been heard and understood by the nation’s highest court. Needless to say, it’s a deferred payoff for the bill’s orange-clad opponents in 2013.