Ch 4 Whole Woman's Health V. Hellerstedt

4.1What happened after Carhart?

States have continued to pass laws around abortion, but no major federal laws have been passed. Without clear standards of what is acceptable, state laws differ drastically. For example, Indiana requires the procedure to be performed by a licensed physician, and abortion is banned after 20 weeks of pregnancy - except in cases of danger to the mother, in which case the procedure must be performed at a hospital with a second participating physician. Other states, like Colorado, have none of these regulations.

4.2What was the law in question?

Texas House Bill 2, or HB2, received national attention when then-State Senator Wendy Davis filibustered it for 11 hours before it was ultimately passed by the Texas legislature and signed into law. HB2 contains two major provisions regarding abortion. The first requires physicians in Texas who perform abortions to have admitting privileges at a hospital within 30 miles of the abortion clinic. The second holds abortion clinics to the same facilities standard as ambulatory surgical centers. These provisions require a myriad of structural updates to many abortion clinics in the state. Supporters of the bill argue that HB2 is intended to protect women’s health.

4.3What was the case against the law?

The petitioners argue that while HB2 alleges to protect women’s health, the intended and actual effect of the bill is to limit women’s access to abortion across the state. Opponents say it would force 75% of clinics across the state of Texas to close, leaving thousands of square miles between San Antonio and the New Mexico border without any clinics. A pillar of their argument is that abortion is considered a relatively safe procedure, so these strict regulations are unnecessary for women’s health. Supporters of the bill respond by pointing to examples of unsafe abortion providers and the need to regulate for the protection of women.

4.4How has the Court changed since Carhart?

Since its decision in Carhart II, the Supreme Court has shifted. Although Justices John Paul Stevens and David Souter had been appointed by conservative presidents, they usually voted along more traditionally liberal or centrist lines. They each retired during President Obama’s tenure and were replaced by Justices Sonia Sotomayor and Elena Kagan, both consistent members of the Court’s liberal coalition.

When the case was first granted, there were nine justices on the bench. But just before it was argued, Justice Antonin Scalia unexpectedly passed away at the age of 79. Justice Scalia was a well-known conservative voice on the bench who, in several cases, made clear that he did not view abortion as a constitutional right. His passing left eight justices on the bench: four liberals, three conservatives, and one swing vote - Justice Anthony Kennedy, who had voted to uphold the right to abortion in Casey, but had written the opinion restricting late-term abortions in Carhart II.

4.5What happened during oral arguments?

Stephanie Toti, the advocate for the abortion clinics, laid out the case that the law does not actually protect women’s health. Solicitor General Donald Verrilli argued as amicus curiae for the United States on the side of the abortion clinics. He emphasized the need to give weight to the undue burden standard, and that defining it in this case would be crucial moving forward.

Scott Keller, the attorney for the state of Texas, was questioned intensely by the three female justices. All three pointed out the potentially overprotective nature of the law. Keller defended the law’s written intent as protecting women’s health. He stressed the need to prevent medical complications and improve facility standards.

4.6What did the decision say?

The Supreme Court ruled 5-3 that HB2’s regulations imposed an undue burden as defined in Casey, and was thus unconstitutional. Justice Breyer’s majority opinion focused on the two pillars of HB2 at issue -- the ambulatory surgical center standards and the hospital admitting privileges -- and weighed their benefits against their costs. The numbers would have to show that abortion was made safer under the new regulations. But there was no such support. Instead, the statistics showed a significant increase in the difficulty of getting an abortion. Since there were more obstacles added than there was a health benefit to women, the Court determined HB2 to be an undue burden. The previous laws Texas had enacted to safely regulate abortion were already satisfying the needs of promoting women’s health, and the addition of HB2 did not add to the safety of the procedure.

In her concurring opinion, Justice Ruth Bader Ginsburg emphasized the research showing that other procedures with more inherent risk than abortion receive less regulation than HB2 required for abortion. She noted that TRAP laws cannot survive judicial inspection.

4.7What did the dissent say?

Justice Thomas’ dissent argued that the Court was reinterpreting previous standards. He argued that this decision advanced an interpretation of the undue burden test not found in Casey. He suggested that the Court was choosing a level of judicial scrutiny to find a specific result. Overall, he argued that the Court should have trusted the Texas legislature’s medical determinations rather than the district court’s.

Justice Alito’s dissent focused on the issue of res judicata. The petitioners in this case had taken HB2 to court before it was enacted to determine it was facially unconstitutional. The United States Court of Appeals for the Fifth Circuit ruled against them, and they did not take that case to the Supreme Court. They instead challenged the law once it had gone into effect. While the majority opinion ruled that this case is different from the earlier one, Justice Alito remained unconvinced. He argued that the current claim was the same as the one that the petitioners did not pursue several years ago, and therefore there was no case. His dissent argues that instead of bringing a new challenge, the petitioners merely presented new evidence. In that case, they could not have a new trial. He also argued that the petitioners did not prove that enough women would be affected by the new regulations to be an undue burden.

4.8What implications does the decision have for similar laws in other states?

For the first time since Casey, states received some guidance on what makes a regulation an undue burden. The Court connected “undue burden” with the requirement that the health benefits of abortion regulations must outweigh the costs, giving it a stronger definition. Justice Breyer’s opinion also relied on data from multiple studies, showing that the Court will consider a regulation in practice, rather than in theory.

The day after the decision was announced, the Supreme Court turned away petitions from backers of similar laws. In both Mississippi and Wisconsin, judges had blocked laws that required abortion doctors to have admitting privileges at a hospital within 30 miles of their abortion clinic. In Mississippi, the law would have shut down the only abortion clinic in the state. By turning away these challenges, the Supreme Court left the laws blocked -- and sent a message that this type of law creates an undue burden.

This definition will likely be tested in the years to come over the course of many regulations, bills, and lawsuits. With this precedent, though, legislation that significantly limits abortion access without adding measurable health benefits will have a more difficult case to prove under judicial scrutiny.

4.9Video: Why is abortion still so contentious?

Quick take:

  • This is the first time a reproductive rights case has gone before a bench with three female justices. Most of the recent cases had had only one, while Justices Sandra Day O’Connor and Ruth Bader Ginsburg were both on the bench for Carhart I.
  • The passing of Justice Scalia did not affect the outcome of the case. Since the majority had five votes even on the eight-member Court, the Texas law would have been struck down no matter how he had voted.