This post has been updated.
Immediately after Monday’s Supreme Court ruling striking down a restrictive Texas abortion law, triumphant abortion-rights advocates predicted it would give them legal pathway to challenge about a dozen similar laws in other states. The law made Texas one of the — if not the — most restrictive states in the nation for abortion, but other states have similar laws, to one extent or another.
They may be getting what they wished for faster than they could have hoped hoped: Texas-like abortion laws in three states — Alabama, Mississippi and Wisconsin — just hit legal dead ends less than a day after the 5-3 ruling declaring Texas’s law unconstitutional.
“This decision has opened the door to go state by state, legislature by legislature, law by law, and restore access to safe, legal abortion,” said Cecile Richards, president of Planned Parenthood, in a statement Tuesday.
To be extra clear, the Supreme Court only ruled on Texas’s law, which essentially required doctors doing abortions and clinics where they performed the abortions to meet hospital-like standards that would have closed most of the state’s clinics.
But there’s a lot the other 10 or so most restrictive states have in common with it. Let’s break down the two key provisions — and what the Court’s ruling on each provision in Texas means for other states.
1) Requiring doctors who perform abortions to have admitting privilege at a nearby hospital
This is known as admitting privileges, and abortion-rights advocates estimated it cut Texas’s 40 abortion clinics down to less than 20, in part because the law limited “nearby” to 30 miles.
There are 10 other states that require admitting privileges, but Elizabeth Nash with reproductive rights research group Guttmacher Institute said six of those are being challenged in court: Alabama, Kansas, Louisiana, Mississippi, Oklahoma and Wisconsin. Many of those states also have a 30-mile restriction.
Three of those states’ challenges hit a legal dead end immediately after the ruling on Texas’s law. On Tuesday, the Supreme Court denied to review court cases challenging Wisconsin’s and Mississippi’s laws, effectively upholding lower court rulings that block the state’s admitting-privilege laws.
And late Monday, Alabama’s attorney general announced he would stop trying to appeal a 2014 decision that ruled his state’s admitting-privilege law unconstitutional, saying Alabama could no longer make a “good faith argument” that the law was constitutional.
Admitting-privilege laws remain in effect unchallenged in four states, though that could change quickly: Missouri (the first state to pass this kind of law, back in the 1980s), North Dakota, Tennessee and Utah. (Missouri and Utah require the hospital to be within a 15-minute drive, according to the Guttmacher Institute.)
2) Require abortions to be done in ambulatory surgery centers
This is a standard that requires what you might expect to see at a hospital; it is known as clinical standards. Texas’s version of the law wasn’t in place yet, but abortion-rights advocates estimated it would have slashed the number of Texas’s abortion clinics from 20 to less than 10 because many abortion clinics said they simply couldn’t afford the renovations.
Nash said nearly half of states have some kind of law related to clinical provisions, but only a handful have a restrictive version like Texas’s: Michigan, Missouri, Pennsylvania, Tennessee and Virginia. She said she’d expect to see some or all of the five states’ clinical provision laws challenged after Texas.
More broadly, as Kim Soffen over at Wonkblog notes, this decision is a rare piece of good news from the Supreme Court for abortion-rights advocates. Since the 1973 Roe v. Wade decision legalizing abortion, there have been a steady stream of decisions upholding restrictive abortion laws. And antiabortion advocates have been on a roll recently passing new laws at the state level.
In part thanks to historic Republican majorities in many states, this year they’ve passed some 30 laws in 14 states raising the requirements for those seeking an abortion. They argue these restrictions ensure abortions are safer.
As I wrote earlier this month:
Antiabortion advocates aren’t just celebrating one good year: 2016 marks the fifth straight year they’ve passed a large number of abortion restrictions. In 2011 alone, Republican legislatures passed some 92 laws limiting abortions. In total, the past five years account for a quarter of all abortion restrictions enacted since the Supreme Court legalized abortion in 1973.
Some of the big ones passed this legislative session:
Nine states introduced measures to ban all or most abortions. Only one, Oklahoma, made it to the governor’s desk. The governor vetoed it.
Three states have banned the most common method of second-trimester abortions (Alabama, Mississippi and West Virginia), while 13 in all have tried. Louisiana’s governor is deciding whether to sign a similar law.
Two states, Louisiana and Kentucky, lengthened the waiting period to get an abortion.
South Dakota and South Carolina voted to enact abortion bans after 20 weeks, making them the 16th and 17th states to do so.
Indiana, which already has some of the most restrictive abortion laws in the nation, made it illegal to abort a fetus because it is diagnosed with Down syndrome or because of its race or gender.
But when it comes to the most restrictive laws of them all, abortion-rights advocates can reasonably argue the law is now on their side. And that argument may be having more of an immediate impact than any of them had predicted.