Supreme Court Strikes Down Abortion Restrictions in Whole Woman’s Health v Hellerstedt

In Whole Woman’s Health v Hellerstedt (2016), a divided U.S. Supreme Court struck down a Texas law placing restrictions on abortion clinics. By a vote of 5-3, the Court held that the law placed an undue burden on a woman’s access to abortion.

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. In support of the laws, the State of Texas maintained that the requirements were necessary to protect the health of women seeking abortions.

Prior to the law taking effect, a group of Texas abortion providers filed suit, ultimately losing a facial challenge to the constitutionality of the admitting-privileges provision. After the law went into effect, another group of abortion providers filed the current suit, claiming that both the admitting-privileges and the surgical-center provisions imposed abortion restrictions that violated the Due Process Clause of the Fourteenth Amendment. They requested declaratory and injunctive relief.

After making extensive findings, the District Court enjoined enforcement of the provisions, concluding that they together created an “impermissible obstacle as applied to all women seeking a previability abortion.” On appeal, the Fifth Circuit Court of Appeals upheld the restrictions. It concluded that res judicata barred the District Court from holding the admitting-privileges requirement unconstitutional statewide and that res judicata also barred the challenge to the surgical-center provision. Reasoning that a law is “constitutional 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 . . . a legitimate state interest,” the court found that both requirements were rationally related to a compelling state interest in protecting women’s health.

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.

The majority determined that the claims were not barred by res judicata. More importantly, it held that “[b]oth the admitting-privileges and the surgical-center requirements place a substantial obstacle in the path of women seeking a previability abortion, constitute an undue burden on abortion access, and thus violate the Constitution.” Justice Stephen G. Breyer wrote the majority opinion, which was joined by Justices Kennedy, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor.

With regard to res judicata, the majority held that “[t]he fact that several petitioners had previously brought the unsuccessful facial challenge in Abbott does not mean that claim preclusion, the relevant aspect of res judicata, applies.” As Justice Breyer explained, “Abbott rested upon facts and evidence presented before enforcement of the admitting-privileges requirement began, when it was unclear how clinics would be affected. This case rests upon later, concrete factual developments that occurred once enforcement started and a significant number of clinics closed.”

The majority also found fault with the Fifth Circuit’s analysis of the abortion restrictions. “The Fifth Circuit’s standard of review may be read to imply that a district court should not consider the existence or nonexistence of medical benefits when deciding the undue burden question, but Casey requires courts to consider the burdens a law imposes on abortion access together with the benefits those laws confer,” Justice Breyer explained.

Justice Breyer further noted that the “court’s requirement that legislatures resolve questions of medical uncertainty is inconsistent with this Court’s case law, which has placed considerable weight upon evidence and argument presented in judicial proceedings when determining the constitutionality of laws regulating abortion procedures.”

With regard to the Texas law, the majority found that both requirements provide negligible health benefits for women, but pose a substantial hurdles for women seeking abortions. It noted that while the admitting-privileges requirement was intended to ensure that patients had easy access to a hospital should complications arise during an abortion procedure, such complications were actually very rare. In the words of Justice Breyer, there was “no significant health-related problem for the new law to cure.” Conversely, the Court’s majority found that the requirement places a “substantial obstacle” in a woman’s path to abortion, noting that “the dramatic drop in the number of clinics means fewer doctors, longer waiting times, and increased crowding.”

The majority similarly found that the “surgical-center requirement also provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an ‘undue burden’ on their constitutional right to do so.” It highlighted that Texas abortion facilities are already subject to stringent oversight and that the additional requirements imposed under the new law are “generally unnecessary in the abortion clinic context” and provide “no benefit when complications arise in the context of a medical abortion, which would generally occur after a patient has left the facility.”

Justice Samuel A. Alito, Jr. wrote a dissenting opinion in which Justice Thomas and Chief Justice John G. Roberts, Jr. joined. In his dissent, Justice Alito argued that the justices should never have decided the case because it was barred under the doctrine of res judicata. “If anything, when a case involves a controversial issue, we should be especially careful to be scrupulously neutral in applying such rules,” Justice Alito wrote. “The Court has not done so here. On the contrary, de­termined to strike down two provisions of a new Texas abortion statute in all of their applications, the Court simply disregards basic rules that apply in all other cases.”

Justice Thomas wrote a separate dissent in which he criticized the Court for bending the rules when it comes to cases involving abortion. “I write separately to emphasize how today’s decision perpetuates the Court’s habit of applying different rules to different constitutional rights— especially the putative right to abortion,” Thomas stated.