Supreme Court Decides Whole Woman's Health v. Hellerstedt

On June 27, 2016, the Supreme Court decided Whole Woman’s Health v. Hellerstedt, No. 15-274, holding that both the admitting privileges and the surgical-center requirements of a Texas law regulating abortions 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.

In July 2013, the Texas Legislature enacted House Bill 2. Among other provisions, the bill required that a physician performing or inducing an abortion have “active admitting privileges at a hospital … located no further than 30 miles from the location at which the abortion is performed or induced” (the admitting-privileges requirement) and that abortion facilities must meet the minimum standards for ambulatory surgical centers (the surgical-center requirement).

A group of Texas abortion providers sued to prevent enforcement of these requirements. Many of the providers were plaintiffs in an earlier lawsuit seeking to invalidate the admitting-privileges requirement as facially unconstitutional. The plaintiffs did not prevail in that earlier lawsuit. The present lawsuit sought to enjoin enforcement of the surgical-center requirement anywhere in Texas and the admitting-privileges requirement at two specific abortion facilities on the ground that requirements violated the Fourteenth Amendment and the Supreme Court’s holding in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).

The district court concluded that the two provisions were unconstitutional and enjoined their enforcement. The Fifth Circuit reversed the district court on both procedural and constitutional grounds. Procedurally, it held that the plaintiffs’ claims were barred by principles of res judicata because they could have brought their constitutional challenges in the earlier lawsuit but failed to do so. On the merits, the Fifth Circuit held that both requirements of the Texas law were rationally related to a legitimate state interest in raising the standard and quality of care of women seeking abortions and protecting their health, and that the plaintiffs failed to proffer competent evidence contradicting the legislature’s legitimate purpose.

The Supreme Court reversed. The Court first held that res judicata did not bar the lawsuit, because this lawsuit presented a post-enforcement challenge to the laws based on evidence of concrete harm (for example, the closure of a number of clinics), while the earlier lawsuit was a pre-enforcement challenge that was raised when it was unclear how the law would affect clinics in practice. The change in factual circumstances after the earlier decision made res judicata inapplicable.

On the merits, the Court held that the admitting-privileges and surgical-center requirements place a substantial obstacle in the path of women seeking a previability abortion and constitute an undue burden on abortion access, thus violating the Fourteenth Amendment under the standard set out in Casey. The Court held that a court must consider the burdens that a law imposes on abortion access together with the benefits those laws confer. The Court also stated that the standard of judicial review that applies to a state’s regulation of a constitutionally protected personal liberty is higher than the standard of review that applies to other legislation, such as economic legislation. And the Court concluded that the Fifth Circuit erred in stating that legislatures, not courts, must resolve questions of medication uncertainty. The Court made clear that courts are permitted to consider and give significant weight to record evidence, and that to do so is not to substitute their own judgment for the legislature’s.

With respect to the admitting-privileges requirement, the Court noted that the purpose of the requirement is to help ensure that women have easy access to a hospital should complications arise during an abortion procedure, but concluded that there was nothing in the record showing that such complications posed a significant health-related problem that needed fixing. Instead, the Court held, the requirement places a substantial obstacle in the path of a woman’s decision to have an abortion, including by leading to the closure of half of Texas’s abortion clinics up to the date of enforcement.

With respect to the surgical-center requirement, the Supreme Court recognized that under abortion facilities were previously subject to a number of health and safety regulations, but concluded that the surgical-center regulation adds requirements that are unnecessary in the abortion-clinic context (such as detailed specifications and requirements about building dimensions and the size of nursing staff). There was evidence in the record supporting the district court’s finding that these requirements do not benefit patients and are not necessary. The Court held that the surgical-center requirement places a substantial obstacle in the path of women seeking an abortion, based on the parties’ stipulation that the requirement would reduce the number of facilities serving the state of Texas to seven or eight. The Court concluded that the law forces women to travel long distances to get abortions in facilities operating at or near capacity, where they are less likely to get individualized attention, serious conversation, and emotional support.

Justice Breyer delivered the opinion of the Court. Justice Ginsburg filed a concurring opinion. Justice Thomas filed a dissenting opinion. Justice Alito filed a dissenting opinion in which Chief Justice Roberts and Justice Thomas joined.