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Tuesday, July 05, 2016

Some thoughts about Whole Woman's Health v. Hellerstedt

Cross-posted at Casetext

I'm delighted to be back blogging at Prawfs! Thanks to Howard and the rest of the regulars for inviting me.

I wanted to start off with some thoughts about the Supreme Court's momentous decision in Whole Woman's Heath v. Hellerstedt -- more thoughts on the case may follow as they develop.

In Whole Woman’s Health v. Hellerstedt, the most important abortion case in over two decades, the Supreme Court handed the plaintiffs as sweeping a victory as they could have hoped for. In doing so, the Court also saved the “undue burden” standard and quite possibly the right to abortion itself.

Since the Supreme Court’s joint opinion in Planned Parenthood v. Casey, which was co-authored by Justices O’Connor, Kennedy, and Souter, the constitutionality of an abortion restriction depended on whether it imposed an “undue burden” on the ability of a “large fraction” of women to obtain an abortion. This standard was not only less protective of abortion rights than the strict scrutiny standard that the Court had set out in Roe v. Wade, it was also so indefinite and malleable that it opened the door to greater and greater envelope-pushing by states adopting increasingly onerous anti-abortion laws.

In Whole Woman’s Health, the Supreme Court was confronted with one such anti-abortion law—Texas’s H.B. 2. The Texas law required abortion clinics to meet the standards of ambulatory surgical centers (essentially, mini-hospitals) and abortion providers to have admitting privileges at a local hospital. The ambulatory surgical center requirements were prohibitively expensive for existing clinics to meet, and admitting privileges can be impossible for certain abortion providers to obtain for reasons totally unrelated to clinical competence, such as opposition to abortion (for example, by a Catholic hospital). Thus, the combined effect of the two restrictions—restrictions extant in numerous other states as well—would be to shut down approximately three quarters of Texas’s abortion providers, forcing many women—especially those outside the major metropolitan areas—to travel long distances and undergo long delays in order to obtain safe and legal abortion services.

In a 5-3 majority opinion by Justice Stephen Breyer, the Court held the Texas abortion restrictions to be an unconstitutional undue burden on abortion rights. In some ways, this holding was not surprising. After all, even Justice Kennedy, the most conservative member of that 5-Justice majority, would have to admit that if anything is a substantial obstacle to abortion access, H.B. 2 is. The bigger surprise was the way the Court went about it. In finding an undue burden, the Court held that the actual health and safety benefits of the law had to be balanced against the impact of the law on abortion access. Given that the two Texas requirements were found to have essentially no meaningful benefits to women, the massive burden on abortion access was unwarranted (or “undue”).

It is hard to overstate how important this particular approach was.

By focusing on the health benefits of the law in relation to the burdens, the Court made sense of, and breathed new life into, the undue burden standard. No longer is the undue burden standard a numbers game, in which the exact formula to be applied is unclear. Nor did the Court issue a narrow but ultimately unhelpful ruling identifying an undue burden in Texas without telling us what an undue burden actually is. Instead, the Court issued a sensible opinion giving real meaning to the word “undue,” and putting at risk dozens of abortion restrictions across the country that are passed in the name of protecting women, without any evidence to back them up.

Other elements of the decision were remarkable. For one thing, the opinion made it clear that courts are not to defer to legislatures on the medical or scientific issues that underlie abortion restrictions; instead, they should examine the evidence independently and critically. Justice Kennedy in Gonzales v. Carhart, the Court’s most recent major abortion case, had worried over the “traditional rule” of deferring to legislatures in the face of medical and scientific uncertainty, before ultimately choosing not defer to Congress’s demonstrably mistaken findings. In Whole Woman’s Health, by contrast, the Court asserted, “The statement that legislatures, and not courts, must resolve questions of medical uncertainty is … inconsistent with this Court’s case law. Instead, the Court, when determining the constitutionality of laws regulating abortion procedures, has placed considerable weight upon evidence and argument presented in judicial proceedings.” The opinion thus affirmed the courts’ duty to review facts independently when constitutional rights are at stake.

The Court broadened its focus in other ways, as well. In Casey, the joint opinion had dismissed the district court’s concerns about the impact of a 24-hour waiting period, requiring two trips to the clinic, on women with fewer resources and those who had to travel long distances. Casey stated “[t]hese findings are troubling in some respects, but they do not demonstrate that the waiting period constitutes an undue burden.” In Whole Woman’s Health, by contrast, the Court specifically cited the trial court’s finding that the Texas laws would “erect a particularly high barrier for poor, rural, or disadvantaged women” in its finding of undue burden. Finally, the Court declined to split hairs on the issues of remedy and of facial versus as-applied challenges, as it had done in Planned Parenthood v. Ayotte and Gonzales v. Carhart.

Looking forward, there is reason to be optimistic about the impact of Whole Woman’s Health on abortion rights. Having now denied certiorari in admitting-privileges cases from Mississippi and Wisconsin (in which the plaintiffs won below), the Court has sent a fairly clear signal to any state legislatures considering admitting-privileges requirements in the future. And numerous states have ambulatory surgical center-type requirements, though admittedly the Court was less categorical in striking those down. Given that ambulatory surgical center requirements vary greatly from state to state in their details and onerousness, it is necessary to look more closely at the specific nature of the requirements and their impact. Reading the opinion to require states generally to justify burdens on abortion with evidence supporting an actual benefit for the law, it’s possible that the Whole Woman’s Health decision will also be used to strike down 20-week abortion bans, which are often justified based on junk evidence pertaining to fetal pain. Bans on using telemedicine to provide medication abortion, currently in effect in 18 states, are also now vulnerable.

Perhaps the most important aspect of Whole Woman’s Health, however, is that the Court treated the right to choose abortion like the fundamental right that it is. As with other constitutional rights, infringements on the right to choose abortion must be viewed with scrutiny rising above the level of deferential rational-basis review.

Posted by Jessie Hill on July 5, 2016 at 10:18 AM in Constitutional thoughts, Current Affairs | Permalink


Joe, sorry for not responding earlier. I agree that the bigger problem with 20 week bans is that they ban abortion pre-viability. WWH would potentially provide another basis for challenging those bans but they are already pretty clearly unconstitutional.

Posted by: Jessie Hill | Jul 14, 2016 3:39:07 AM

"it’s possible that the Whole Woman’s Health decision will also be used to strike down 20-week abortion bans"

Like the per curiam stun gun opinion, which held the lower court ignored basic rules (cf. a specific application of "dangerous and unusual) this seems to me more like a categorical problem since it violates the viability dividing line.

The telemedicine bans are more intriguing.

Posted by: Joe | Jul 5, 2016 10:31:29 AM

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