Which Justices Voted Against Abortion Rights?

On Monday, the U.S. Supreme Court voted 5-3 to uphold abortion rights in the case of Women's Health v Hellerstedt. Which is a big deal. The case strikes down Texas law HB2, which stood to close 32 out of 40 abortion clinics in the state. This decision ensures that states can't impose a de facto ban on abortion by placing restrictions on abortion providers which make it impossible for them to operate, as lawmakers tried to do in Texas. But of course, not everyone on the Court agreed that this was important — Justices Thomas, Alito, and Roberts all voted in favor of the law.

The votes of the traditionally conservative members of the Court aren't surprising. What is surprising is that one conservative justice didn't follow this pattern. Justice Kennedy voted against HB2, thereby securing a victory for abortion rights in what otherwise would have been a deadlocked decision — which would have upheld the lower court rulings in favor of the law. Justice Kennedy has only voted to uphold abortion rights in one previous case.

Justice Alito filed a dissenting opinion, which Thomas and Roberts both joined, which criticized the majority opinion on the grounds that they did not believe the petitioners, Women's Health, had made their case. "Petitioners in this case are abortion clinics and physicians who perform abortions," Alito writes. "If they were simply asserting a constitutional right to conduct a business or to practice a profession without unnecessary state regulation, they would have little chance of success." What matters, Alito writes, is whether the petitioners can demonstrate that the law has an undue impact on patients. And in his view, "Petitioners did not make that showing."

Justice Thomas also wrote his own dissenting opinion, though it was not joined by either of the other dissenting justices. He also is of the view that, although women have a constitutional right to an abortion, abortion providers don't have a constitutional right to operate. He writes, "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." One can only assume that to him, taking away someone's ability to safely exercise a right is not the same thing as depriving them of that right.

Abortion remains controversial in the U.S., with Americans still as divided as ever on the topic. In recent years, there has been a wave of state laws aimed at reducing abortion access; HB2 was one of many. This Supreme Court decision will hopefully ensure that, in spite of this backlash, women across the country will continue be able to access safe, legal abortion.