Whole Woman’s Health v. Cole: First Significant Abortion Case in Seven Years

The U.S. Supreme Court granted certiorari this month in Whole Woman’s Health v. Cole. The case, which revolves around the constitutionality of abortion restrictions imposed by the State of Texas, represents the first time the Court has substantively addressed the controversial issue in seven years.

In 2013, Texas enacted H.B. 2, a statute that imposes a variety of requirements on abortion providers. The admitting-privileges requirement provides that “[a] physician performing or inducing an abortion must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that is located not further than 30 miles from the location at which the abortion is performed or induced.” Another provision of the statute requires that facilities that perform abortions meet the standards established for ambulatory surgical centers.

A group of abortion providers filed suit, seeking to invalidate the above requirements. They alleged that the abortion restrictions violated the Due Process Clause of the Fourteenth Amendment and requested declaratory and injunctive relief. The Fifth Circuit Court of Appeals upheld the restrictions, concluding that the undue burden standard does not require—or even permit—inquiry into the extent to which an abortion restriction furthers a valid state interest, which conflicts with decisions of the Seventh and Ninth Circuits.

In Planned Parenthood v. Casey, the Supreme Court considered a broad Pennsylvania abortion law that required women seeking abortions to sign an informed consent form, undergo a 24-hour waiting period, obtain the consent of at least one parent or guardian if under the age of majority, and inform spouses of their plans to terminate her pregnancy. A deeply divided Court ultimately upheld the 24-hour waiting period, informed consent, and parental consent requirements, but struck down the spousal notification provision. While the Court reaffirmed its core holding in Roe regarding the right to terminate a pregnancy, the Casey decision lowered the judicial review standard used to evaluate abortion regulations. Under the majority decision, laws restricting abortion prior to viability would be deemed unconstitutional only if they imposed an undue burden on a woman’s right to terminate her pregnancy.

In upholding the Texas abortion restriction, the Fifth Circuit relied on Casey. Now that the case is before the Supreme Court, the justices have agreed to consider the following two questions:

(1) Whether, when applying the “undue burden” standard of Casey, a court errs by refusing to consider whether and to what extent laws that restrict abortion for the stated purpose of promoting health actually serve the government’s interest in promoting health; and (2) whether the Fifth Circuit erred in concluding that this standard permits Texas to enforce laws that would cause a significant reduction in the availability of abortion services while failing to advance the State’s interest in promoting health – or any other valid interest.

The Court has not yet scheduled oral argument. However, it is likely to take place in late spring, with the Court issuing its decision in June. This case is clearly one of the highlights of the 2015-2016 term.