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Case Thoughts: Whole Woman’s Health v. Hellerstedt

By District of Columbia Bar

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Whole Woman’s Health v. Hellerstedt is the first abortion case before the Supreme Court in more than 20 years (the last was Planned Parenthood of Southeastern Pennsylvania v. Casey in 1992). The question here is whether a 2013 Texas law known as HB2 places an “undue” burden on a woman’s constitutional right to an abortion.

The Texas law, which has forced many abortion clinics to close, requires doctors at abortion clinics to have admitting privileges at a hospital no more than 30 miles away and requires clinics to set standards that are similar to those at a surgical center.

Supporters of the law say these rules will help protect women’s health, while opponents say it’s nothing other than an attempt to limit abortions. The court’s ruling will not only affect Texas, but states with similar abortion requirements as well.

Stephanie Toti, senior counsel, Center for Reproductive Rights

This is a historic case. The future of women’s access to safe and legal abortion hangs in the balance.

The Texas laws would force three-quarters of the state’s abortion facilities to close, leaving women in huge geographic areas without any abortion access whatsoever. Texas is the second largest state in the country, both in terms of population and area, and if HB2 is fully implemented then there will only be nine abortion facilities left in the state and they will be clustered in the four largest metropolitan areas. There won’t be a single clinic south or west of San Antonio, which is a geographic area larger than the entire state of California. Women who live in the western part of the state would have to travel more than 500 miles to access a Texas abortion provider.

What we’ve been seeing in the interim is that roughly half of the clinics have been closed as a result of the law and half have been able to stay open as a result of preliminary court intervention. Even with half the clinics open, women who can afford it are traveling out of state to get abortions and women who can’t afford to do that are increasingly taking matters into their own hands. There was substantial evidence given at the trial in this case about women attempting self-induced abortions using various methods.

As far as the law’s supporters saying that it protects women’s health, nearly every leading medical association in the country has come forth to condemn HB2 as unrelated to women’s health, and that includes the American Medical Association, which is the largest medical association in the country, and the American College of Obstetricians and Gynecologists. These restrictions are solely about politics and have nothing to do with women’s health.

We have been confident all along that a majority of the court will see these laws for the sham that they are and we remain confident that a majority of the court’s members will rule that way. So while it’s certainly possible that the court will split 4-4, we’re expecting a majority decision in the case and we are optimistic about the outcome.

Denise Burke, vice president of legal affairs, Americans United for Life

The practice of abortion in America is at a crossroads as the Supreme Court prepares to decide its first abortion case in nearly a decade.  As a result of the court’s commandeering of the abortion issue in Roe v. Wade, it alone defines the states’ ability to protect maternal health.  In Whole Woman’s Health v. Hellerstedt, the court is specifically weighing the constitutionality of a Texas law requiring abortion facilities to meet the same patient care standards as other outpatient surgical centers and mandating that abortion providers maintain hospital admitting privileges. 

While “historic” is word that can be overused, it clearly applies here. The impact of the court’s ruling will sweep more broadly than Texas. Currently, 29 states prescribe health and safety standards for abortion clinics and 15 states require abortion providers to have hospital admitting privileges or a patient transfer agreement with a physician who maintains such privileges.  

Despite what was promised in the aftermath of Roe, legal abortion clinics across the country continue to offer dangerous back alley abortions.  During just the last six years, more than 170 abortion providers in 30 states have faced investigations or been cited for violating state health and safety standards.  This sobering reality should guide the court’s ultimate decision.  If it instead adopts the abortion industry’s argument that mere access to an abortion clinic is sufficient to guarantee women’s health and safety, there will be far-reaching and negative consequences for women. 

Legislators seeking to protect women from the abortion industry’s questionable safety record will be effectively thwarted.  Abortion clinics will instead be given a preemptive “veto” over commonsense regulations that they prefer to ignore. 

Importantly, to rule in favor of the Texas requirements, the justices simply have to remember what was decided more than 40 years ago in Roe: A state’s legitimate interest in regulating abortion “obviously extends at least to [regulating] the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that may arise.”