What just happened?

In one of the most significant rulings on abortion in decades, the Supreme Court ruled in a 5-3 decision on Whole Woman’s Health v. Hellerstedt to overturn state laws designed to regulate abortion clinics in a way that would protect women’s health.

What was the case about?

After the Kermit Gosnell scandal created an awareness of the unsafe, unsanitary, and largely unregulated conditions in abortion clinics in America, the State of Texas passed House Bill 2. According to Alliance Defending Freedom, HB2—which became law in 2013—mandates that abortion facilities adhere to ambulatory surgical center requirements common to most outpatient facilities, and it also requires abortionists to have admitting privileges at a hospital within 30 miles of the abortion facility to be able to handle emergencies when something goes wrong.  

Whole Woman's Health, an abortion provider in Texas, challenged the law in federal court, claiming it was expensive, not medically necessary, and interfered with women's health care.

What was the lower court ruling?

In June 2015, the Fifth Circuit Court in New Orleans disagreed with the claims of Whole Woman's Health and largely upheld the contested provisions of the Texas law. The Fifth Circuit ruled that, with minor exceptions, the law did not place an undue burden on the right to an abortion.

Why did the case go to the Supreme Court?

The plaintiffs on the side of Whole Woman's Health Women appealed the case to the Supreme Court, arguing that when applying the “undue burden” standard of Planned Parenthood v. Casey, the Fifth Circuit court erred 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 that the Fifth Circuit erred in concluding that this standard permits Texas to enforce, in nearly all circumstances, 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.

What is the federal government’s position on the case?

The Obama administration joined in the case in full support of the abortion clinics and their doctors.

Was the law responsible for shutting down abortion clinics?

Prior to the adoption of the new restrictions by the Texas legislature, the state of Texas had 41 clinics performing abortions. But as a result of partial enforcement of the new law, Lyle Denniston says, that number has dropped to 19, and clinic operators have argued that the total number may drop to 10, statewide, if the Court were to uphold the law. The conservative justices on the Court, however, said there was little evidence that clinics have closed or would close because of the law.

What was the opinion of the liberal justices on the ruling?

The liberal majority (Justices Breyer, Kennedy, Ginsburg, Sotomayor, and Kagan) claimed that the regulations impose an “undue burden” on women seeking abortions. According to the opinion:

The dramatic drop in the number of clinics means fewer doctors, longer waiting times, and increased crowding. It also means a significant increase in the distance women of reproductive age live from an abortion clinic. Increased driving distances do not always constitute an “undue burden,” but they are an additional burden, which, when taken together with others caused by the closings, and when viewed in light of the virtual absence of any health benefit, help support the District Court’s “undue burden” conclusion.

Their ultimate determination:

We have found nothing in Texas’ record evidence that shows that, compared to prior law (which required a “working arrangement” with a doctor with admitting privileges), the new law advanced Texas’ legitimate interest in protecting women’s health.

What was the opinion of the conservative justices on the ruling?

Justice Thomas wrote a separate dissent 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 notes that throughout the nation’s history third-parties have been barred from bringing a case challenging a statute by asserting someone else’s constitutional rights. Yet exceptions are commonly made by the Court on abortion-related cases. He writes:

Ultimately, this case shows why the Court never should have bent the rules for favored rights in the first place. Our law is now so riddled with special exceptions for special rights that our decisions deliver neither predictability nor the promise of a judiciary bound by the rule of law.

Justice Alito also wrote a dissent noting that the Court appears to have special rules when it comes to abortion. Says Alito, “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.”

In his dissent (which was joined by Thomas), Alito notes, “The Court’s patent refusal to apply well-established law in a neutral way is indefensible and will undermine public confidence in the Court as a fair and neutral arbiter.”