What is this case and what’s it about?
The case is Whole Women’s Health v. Cole. Abortion clinics in Texas are challenging common-sense state regulations intended to protect the health of all women and any children born alive during botched abortions, arguing that the laws are too burdensome on women wanting to get abortions in some parts of Texas. You may remember the immense protests at the Texas State Capitol surrounding the Wendy Davis filibuster of these regulations that resulted in then-Governor Rick Perry calling a special session to pass these laws once and for all.
What is the Texas law, and what part of it is being challenged?
Referred to as House Bill 2, the abortion restrictions in the law can be divided into four parts:
- A rule that requires abortionists to obtain admitting privileges at a hospital within 30 miles of the clinic where they perform the abortion;
- A rule that requires patients to follow FDA protocols when ingesting abortion medication;
- A ban on abortions after 20 weeks; and
- A rule requiring abortion facilities to meet Ambulatory Surgical Center (ASC) standards
The 20-week abortion ban and the application of these other standards to most abortion clinics throughout Texas have already taken effect. By most reports, the number of abortion clinics in Texas has been reduced from over 40 to 17.
Some abortion clinics challenged the admitting privilege requirements for abortionists and the ASC basic health standards for abortion clinics.
What did the Fifth Circuit rule?
The Fifth Circuit Court of Appeals ruled that the Texas law was constitutional with a couple small exceptions. From the opinion itself:
In plain terms, the Texas law and its provisions may be applied throughout Texas, except that Supreme Court precedent requires us to partially uphold the district court’s injunction of the ASC requirement as applied to the Whole Woman’s Health abortion facility in McAllen, Texas, and to uphold the district court’s injunction of the admitting privileges requirement as applied to Dr. Lynn when he is working at the McAllen facility. (p. 3)
Texas’s stated purpose for enacting H.B. 2 was to provide the highest quality of care to women seeking abortions and to protect the health and welfare of women seeking abortions. There is no question that this is a legitimate purpose that supports regulating physicians and the facilities in which they perform abortions. (p. 32)
In other words, with the exception of one abortion clinic in McAllen, Texas and one abortionist who works there, the law may go into effect. That clinic would not need to meet the ASC requirement, and that doctor would not have to meet the admitting privileges requirement due to the Fifth Circuit’s application of Supreme Court precedent in Planned Parenthood v. Casey. The Fifth Circuit found that the requirements for that clinic would possibly close it down and therefore make it too burdensome for women nearby to obtain an abortion.
For every other abortion clinic and every other abortionist, the laws and regulations would apply.
What is the question before the Supreme Court?
The petitioners in the case presented two questions in their petition for a writ of certiorari (asking the Supreme Court to take the case and answer these questions):
(1) Whether, when applying the “undue burden” standard of Planned Parenthood v. 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, 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.
Why is this case so important?
Planned Parenthood v. Casey was the successor and clarifying case that could have overturned Roe v. Wade. Instead, in an opinion that was as constitutionally cloudy and perplexing as its predecessor, the Supreme Court established a new constitutional standard that any abortion regulations and restrictions must meet. That standard asks whether the regulation imposes an “undue burden” on a woman’s right to an abortion. This test asks if a substantial obstacle has been placed in the path of a woman seeking the abortion of a nonviable fetus. However, in order to promote states’ profound interest in potential life, measures may be taken to ensure a woman’s choice is informed and they may not be invalidated even if their purpose is to persuade the woman to choose childbirth over abortion.
In other words, states may pass abortion regulations to promote women’s health, respect for unborn life, and to persuade to choose childbirth. While upholding the essential holding of Roe, Casey struck down the requirement that a woman notify her spouse before getting an abortion while upholding a 24-hour waiting period and parental consent for minors.
The Supreme Court’s answers to these cases provide the best chance in nearly a quarter century since Casey to overturn Roe v. Wade. While we cannot expect that to happen, the case will have a huge impact on the rights of citizens and their elected representatives in state legislatures to pass common-sense regulations protecting the health of women and children in light of grisly abortion clinics like those of Kermit Gosnell.
Be in prayer for the lawyers arguing this case and for the Supreme Court justices deciding it.