June 28, 2016
Yesterday, the Supreme Court issued its decision in Whole Women’s Health v. Hellerstedt. As headlines are already announcing, the ruling is one of the most significant on the issue of abortion in recent history.
The majority decision in the case, written by Justice Stephen Breyer and joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan, not only struck down the challenged provisions of the Texas state law at issue in the case, but also allowed the challenge to proceed past potential procedural barriers that, according to the dissent, should have determined the outcome of the case without requiring the Court to reach the substantive issues thereof.
The factual background
But before we get too far into discussing the ruling’s implications, we must understand how the case reached the Court to begin with. Whole Women’s Health began with the passage of House Bill 2 (H.B.2) by the Texas legislature in 2013. The law went into effect in phases until September 2014. The two provisions being challenged in Whole Women’s Health required (1) that abortion doctors must have admitting privileges at a hospital within 30 miles of the abortion clinic; and (2) abortion clinics must comply with the ambulatory surgical center requirements.
Here’s where the aforementioned “procedural barriers” come in: prior to the new provisions taking effect, a group of abortion doctors challenged the first of the two challenged provisions. The district court granted the injunction – which was vacated three days later by the Fifth Circuit Court of Appeals. The Fifth Circuit later upheld the challenged provision in a full opinion, among other things explaining that the abortion doctors “had not provided sufficient evidence ‘that abortion practitioners will likely be unable to comply with the privileges requirement.’” The challengers in that case didn’t seek Supreme Court review.
In April 2014, a week after the Fifth Circuit issued its opinion, another group of abortion providers, many of whom were part of the previous lawsuit, filed suit seeking to enjoin both provisions mentioned earlier.
After a four-day bench trial, the district court concluded, based on extensive factual findings, that the challenged provisions imposed “an undue burden” on the right to seek an abortion (citing to the Supreme Court’s 1992 Planned Parenthood v. Casey ruling), and thus invalidated both provisions.
On appeal, the Fifth Circuit once again upheld the challenged provisions, and further held that res judicata – the principle that the same legal claim may not be tried more than once and the now-oft-mentioned “procedural barrier” – prohibited the challengers’ claim against the admitting privileges requirement.
The Supreme Court’s ruling
The Supreme Court agreed to review the case, and in a 5-to-3 ruling, reversed the Fifth Circuit.
The majority opinion relied heavily on Casey, which established the “undue burden test,” the current prevailing standard for determining whether abortion restrictions are constitutional. Under this test, a law is unconstitutional if it has “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”
As I noted almost four years ago to the day (and perhaps a bit cynically, in retrospect), because of the vague and subjective language used in Casey, “nearly all abortion restrictions short of outright prohibition pass constitutional muster.”
Clearly, Whole Women’s Health demonstrates that I was mistaken … or was I?
I ponder this point because yesterday’s ruling didn’t rely exclusively on Casey. That is, the opinion yesterday actually strengthened the constitutional protections for the right to an abortion first elaborated in Casey.
Specificially, although the majority opinion acknowledged that a “state has a legitimate interest in seeing to it that abortion … is performed under circumstances that insure maximum safety for the patient,” a principle first established in Roe v. Wade, the Court acknowledged findings from the district court that abortions are “safer than numerous procedures that take place outside hospitals and to which Texas does not apply its surgical-center requirements.”
In other words, unlike in most other circumstances, the Court doesn’t just take the legislature’s word for it about its interest in safe abortions. In fact, the Court almost goes so far as to establish the safety of abortions procedures performed in clinics as a matter of law.
A course change
Considering that “protecting women’s health” has been used as the stated legislative impetus behind abortion restrictions enacted in the past decade or two, this attitude by the Court (or, at least, the five justice majority in Whole Women’s Heath) is a huge paradigm shift. It will likely make imposing similar restrictions on abortion facilities markedly more difficult, if not impossible.
What’s more, this ruling isn’t restricted to just Texas’s law: 13 other states have a similar law to Texas’s hospital admitting privileges requirement, and 21 other states have facility requirements analogous to Texas’s ambulatory surgical center requirements. Those laws are all severely imperiled as a result of yesterday’s ruling.
In addition, the strength of the Whole Women’s Health majority was such that, even if a hypothetical President Trump nominates a conservative jurist to fill the late Justice Scalia’s seat, the majority seen yesterday will remain.
In short, the decision marks a significant course change for the Court on abortion — toward expanding rather than limiting those constitutional rights.