Whole Woman’s Health v. Hellerstedt

WHOLE WOMAN’S HEALTH V. HELLERSTEDT: A REAFFIRMATION OF REPRODUCTIVE RIGHTS

By: Payton George, Volume 101 Staff Member

On June 27, 2016, the Supreme Court issued its ruling in the case of Whole Woman’s Health v. Hellerstedt.[1] In an opinion heralded by pro-choice supporters,[2] Justice Breyer, joined by Justices Kagan, Sotomayor, Kennedy, and Ginsburg (who issued her own concurring opinion), held that two provisions of Texas House Bill 2 (“H.B. 2”) “constitute[d] an undue burden on abortion access,” and thus were unconstitutional for their violation of the Fourteenth Amendment.[3]

I. HISTORY

In 1965, the Supreme Court first recognized a right to privacy in the marital relationship, ruling that a Connecticut law outlawing contraceptives infringed on married couples’ rights.[4] From there, women’s reproductive rights began to grow. This right to contraceptive use, which reflected a right to privacy regarding “whether to bear or beget a child,” was extended to unmarried individuals in 1972.[5] One year later, the Court’s landmark ruling of Roe v. Wade extended a woman’s right to privacy to the “decision whether or not to terminate her pregnancy.”[6] However, the Court made it clear that this was not an unlimited right; its ruling allowed states to regulate abortions when performed past the point of viability (which it determined was at the beginning of the second trimester), and even allowed states to proscribe abortions past this point unless “necessary to preserve the life or health of the mother.”[7]

While Roe was important in the history of reproductive rights in the United States, current reproductive law is “bounded and underpinned”[8] by the 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey.[9] The case involved Pennsylvania statutes which required: (1) that a woman be provided with informed consent prior to an abortion, and given certain materials twenty-four hours before the procedure (instituting a twenty-four hour waiting period); (2) informed consent of at least one parent of a minor seeking an abortion, with an allowance for judicial bypass in some situations; and (3) a married woman seeking an abortion must certify that she has notified her husband of her intent to obtain an abortion.[10] The Court held that “a statute which, while furthering the interest in potential life or some other valid state interest, has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends.”[11] When a regulation is designed to protect the health of a woman obtaining an abortion, it is “valid if [it does] not constitute an undue burden . . . [but] [u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion” are undue burdens.[12] The Court concluded that the informed consent and parental consent requirements were constitutional, but the spousal notification requirement imposed an undue burden on a woman seeking an abortion.[13]

II. THE CASE

The governor of Texas, Rick Perry, signed H.B. 2 on July 18, 2013, a day that he heralded as “happy, celebratory.”[14] The provisions of the bill that were at issue in Hellerstedt were the “admitting privileges requirement” and the “surgical center requirement.”[15] The admitting privileges requirement dictated that any physician performing an abortion must have admitting privileges at a hospital less than thirty miles away from the site of the abortion.[16] The surgical center provision required that abortion facilities meet the minimum standards required under the Texas Health and Safety Code for ambulatory surgical centers.[17]

A group of abortion providers objected to the passage of this bill, and filed suit after it took effect; their suit eventually became Whole Woman’s Health v. Hellerstedt.[18] They argued that the provisions “violated the Constitution’s Fourteenth Amendment,” by restricting access to abortion.[19] The District Court which originally heard the case agreed, and “enjoin[ed] the enforcement of both provisions on the basis that they act together to create an undue burden on a woman seeking a previability abortion.”[20] The Western District of Texas based its ruling on several factual findings, including that the combined effect of these provisions would close all but seven (potentially eight) abortion facilities in Texas by September of 2014.[21] These remaining facilities would be concentrated in the eastern part of the state, forcing women living further west to travel long distances if they wanted an abortion.[22] They also found that there were approximately 60,000 to 72,000 “legal abortions performed annually” in Texas, and that with the decrease in available facilities, each facility would have to care for between 7,500 and 10,000 patients a year.[23] In addition, the District Court found that “after September 1, 2014, approximately 2 million women will live further than 50 miles, 1.3 million further than 100 miles, 900,000 further than 150 miles, and 750,000 further than 200 miles” from an abortion clinic.[24] The provisions would also be costly; if clinics worked to meet the requirements of the provisions, it would cost them approximately one-million to one-and-a-half-million dollars.[25] The District Court concluded that “the severity of the burden imposed by both requirements [was] not balanced by the weight of the interests underlying them,” a decision bolstered by the fact that before these provisions were in place, “abortion in Texas was extremely safe with particularly low rates of serious complications and virtually no deaths occurring on account of the procedure.”[26]

Despite these findings, the Fifth Circuit Court of Appeals overturned the District Court and ruled that the provisions were constitutional.[27] The Court of Appeals interpreted the test set forth in Casey as allowing a regulation “if: (1) it does not have the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus; and (2) it is reasonably related to (or designed to further) a legitimate state interest.”[28]

The Supreme Court ruled that “[t]he Court of Appeals’ articulation of the relevant standard [was] incorrect.”[29] The Court believed that the Fifth Circuit’s interpretation excluded the consideration of medical benefits when determining whether a provision was an undue burden, while Casey “requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.”[30] The Fifth Circuit’s test was less stringent than the test created in Casey. The Court went on to apply the correct Casey standard to the case at hand.

Based on scientific evidence and studies submitted to the Court, it found that nothing in the record showed that the new admitting privileges provision facilitated Texas’s interest in protecting women’s health better than the old statute.[31] However, the record did show that the requirement placed a substantial obstacle in front of women seeking an abortion.[32] When the admitting privileges provision was enforced, the amount of facilities performing abortions decreased from about forty to about twenty.[33] Amicus briefs filed with the court argued that it was difficult for doctors to obtain admitting privileges. These privileges are often awarded after a doctor has admitted a minimum number of patients to the hospital, and since abortions are so safe now, most doctors would not have enough women (thankfully) to send to hospitals to meet the requirement.[34] The admitting privileges requirement closed clinics and led to “fewer doctors, longer waiting times, and increased crowding.”[35] While the Court recognized that increased distances to clinics do not always constitute undue burdens alone, the increased distance was just one of many burdens that resulted from this provision. “[I]n light of the virtual absence of any health benefit” conferred by this provision, and the burdens it had caused, the Court ruled that the admitting privileges provision was an unconstitutional undue burden.[36]

Before the surgical-center requirement was instituted, abortion clinics were required “to meet a host of health and safety requirements.”[37] There was also ample evidence in the record demonstrating that the surgical-center requirement was not necessary and conferred no increase in benefits toward women seeking abortions.[38] As stated above, abortions are extremely safe now, and when complications do arise they do so overwhelmingly when the patient has already left the facility, making increased requirements on the clinics providing abortions nonsensical.[39] Further, this requirement contributed to the mass-shutdown of abortion clinics, which led to over-crowding problems similar to those caused by the admitting privileges provision.[40] Because the requirement provided few benefits to women seeking abortions, and was accompanied by many negative repercussions, the Court ruled that the surgical-center requirement was an undue burden as well.[41]

III. THE FUTURE

“[I]n the face of no threat to women’s health, Texas [sought] to force women to travel long distances to get abortions in crammed-to-capacity superfacilities.”[42] In its resounding decision this summer, the Supreme Court not only loudly reaffirmed a woman’s right to seek an abortion, it also bolstered Casey’s undue burden test. When plaintiffs had previously challenged state abortion regulations, they had to prove that the provisions imposed an undue burden, while states only had to show that the provisions were rationally related to legitimate state interests.[43] Hellerstedt may change the rules: states may have to show that the provisions provide women with actual benefits and that its interest is legitimate, while plaintiffs would only have to show that the burdens created by the regulations overcome any benefits actually conferred.[44] The decision will also have repercussions on other states with similar abortion facility regulations.[45]

  1. Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016).
  2. See, e.g., Camila Domonoske, Supreme Court Strikes Down Abortion Restrictions in Texas, NPR (June 27, 2016), http://www.npr.org/sections/thetwo-way/2016/06/27/483686616/supreme-court-strikes-down-abortion-restrictions-in-texas (reporting that “[a]bortion rights supporters” and the president of Planned Parenthood “hailed the decision”); Whole Woman’s Health v. Hellerstedt, Ctr For Reproductive Rts, http://www.reproductiverights.org/case/whole-womans-health-v-hellerstedt (last visited Nov. 1, 2016) (“The decision . . . reaffirms a woman’s constitutional right to access legal abortion, and will empower women to fight back against deceptive anti-choice laws in Texas and beyond.”).
  3. Whole Woman’s Health, 136 S. Ct. at 2298.
  4. Griswold v. Connecticut, 381 U.S. 479, 485–86 (1965).
  5. Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).
  6. Roe v. Wade, 410 U.S. 113, 153 (1973).
  7. Id. at 162–64.
  8. Jared H. Jones, Women’s Reproductive Rights Concerning Abortion, and Governmental Regulation Thereof—Supreme Court Cases, 20 A.L.R. Fed. 2d 1, § 2 (2007).
  9. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).
  10. Id. at 844.
  11. Id. at 877.
  12. Id. at 878.
  13. Id. at 879–900.
  14. Chuck Lindell, Perry Signs Abortion Bill into Law, Austin American-Statesman, July 18, 2013, http://www.statesman.com/news/state–regional-govt–politics/perry-signs-abortion-bill-into-law/mgkgz9mqxna1j6ygDveeEO/.
  15. Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2299 (2016).
  16. H.B. 2, 2013 Leg., 83d Sess., § 2 (Tex. 2013).
  17. H.B. 2, 2013 Leg., 83d Sess., § 4 (Tex. 2013).
  18. Whole Woman’s Health v. Lakey, 46 F. Supp. 3d 673 (W.D. Tex. 2014). Many of the plaintiffs involved in Hellerstedt were also involved in an earlier suit involving the statute. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 748 F.3d 583 (2014). This suit, in which plaintiffs sought facial invalidation of the admitting privileges provision (it did not challenge the surgical center provision), was filed before enforcement of the new statute. Id. at 587–88. In the present case, the Fifth Circuit ruled that plaintiffs were barred from bringing this “second action” because they had already pursued their claim in Abbott. Whole Woman’s Health v. Cole, 790 F.3d 563, 581–82 (5th Cir. 2015). However, the Supreme Court ruled that plaintiffs were not barred by res judicata because Abbott involved a pre-enforcement claim, and the instant case was a post-enforcement claim. Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2304–07 (2016). The Court also ruled that plaintiffs did not miss their chance to challenge the constitutionality of the surgical center requirement by not objecting to it in Abbott. Id. at 2307–09.
  19. Hellerstedt, 136 S. Ct. at 2301.
  20. Lakey, 46 F. Supp. 3d at 687–88.
  21. Id. at 680.
  22. Id.
  23. Id. at 681–82.
  24. Id. at 681.
  25. Id. at 682.
  26. Id. at 684.
  27. Whole Woman’s Health v. Cole, 790 F.3d 563, 567 (5th Cir. 2015).
  28. Id. at 572.
  29. Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2309 (2016).
  30. Id.
  31. Id. at 2311.
  32. Id. at 2312.
  33. Id.
  34. Id.
  35. Id. at 2313.
  36. Id.
  37. Id. at 2314.
  38. Id. at 2315.
  39. Id.
  40. Id. at 2316.
  41. Id. at 2318.
  42. Id.
  43. Rob Robinson, Benefits and Burdens: The Supreme Court’s Decision in Whole Woman’s Health v. Hellerstedt, 37 Just. Sys. J. 387, 391 (2016).
  44. Id.
  45. Sara Rosenbaum, When Common Sense and Public Health Prevail: Whole Woman’s Health v. Hellerstedt, Health Affairs Blog (July 1, 2016), http://healthaffairs.org/blog/2016/07/01/when-common-sense-and-public-health-prevail-whole-womens-health-v-hellerstedt/ (reporting that in March 2016, five states had similar admitting privileges requirements and twenty-two had surgical center requirements).
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