In one of the most closely watched cases of this term, a divided Supreme Court struck down Texas’s abortion law, finding that it constituted an undue burden on a woman’s right to obtain an abortion.
In 2013, the Texas Legislature enacted House Bill 2 (H.B. 2), which required physicians performing an abortion to have active admitting privileges at a nearby hospital, and required abortion facilities to meet minimum standards applicable to ambulatory surgical centers under Texas law. A group of abortion providers filed suit, claiming that both the admitting-privileges and surgical-center provisions violated the Fourteenth Amendment as interpreted by Planned Parenthood of Se. Pa. v. Casey. The District Court had found that as the admitting-privileges requirement began to be enforced, the number of facilities providing abortions dropped in half; this decrease in geographical distribution meant that the number of women of reproductive age living more than 200 miles away from an abortion facility increased by about 2800%; the number of facilities would drop to seven or eight if the surgical-center provision took effect; before the law’s passage, abortion was an extremely safe procedure with very low rates of complications and virtually no deaths; and the cost of compliance with the surgical-center requirement would most likely exceed $1.5 million to $3 million per clinic. The court enjoined enforcement of the provisions, finding that the law created an “impermissible obstacle” as applied to all women seeking a previability abortion. The Fifth Circuit reversed, finding that the law’s requirements were rationally related to a compelling state interest in protecting women’s health.
In the 5-3 Supreme Court decision authored by Justice Breyer, the Supreme Court held that both the admitting-privileges and the surgical-center requirements of the law placed a substantial obstacle in the path of women seeking a previability abortion, constituting an unconstitutional undue burden on abortion access. The Court found that Casey requires courts to consider the burdens a law imposes on abortion access together with the benefits those laws confer, contrary to what the Fifth Circuit’s standard of review implied. The Court also found that the Fifth Circuit’s test mistakenly equated the judicial review applicable to the regulation of a constitutionally protected personal liberty with the less strict review applicable to matters like economic legislation. The Court further found the Fifth Circuit’s holding that “medical uncertainty underlying a statute is for resolution by legislatures, not the courts” was inconsistent with Supreme Court precedent, which has placed considerable weight upon evidence and argument presented in judicial proceedings when determining the constitutionality of laws regulating abortion procedures. In other words, the Court found the District Court applied the correct legal standard by considering the evidence in the record, including expert evidence, and then weighing the asserted benefits against the burdens.
Proceeding to the undue burden analysis, the Court noted the stated purpose of the admitting-privileges requirement was to help ensure that women have easy access to a hospital should complications arise during an abortion procedure, but that the District Court had found no significant health-related problem for the new law to cure. By contrast, the Court found that the State of Texas’s evidence did not show how the law advanced the State’s legitimate interest in protecting women’s health when compared to the prior law, which required providers to have a “working arrangement” with doctors who had admitting privileges. At the same time, the Court found the evidence indicated that the requirement placed a “substantial obstacle” in a woman’s path to abortion. The Court found the dramatic drop in the number of clinics meant fewer doctors, longer waiting times, increased crowding, and a significant increase in the distance women of reproductive age lived from an abortion facility. Although increased driving distances do not always constitute an undue burden, the Court found they were an additional burden, and that, when taken together with other burdens caused by the closings and when viewed in light of the virtual absence of any health benefit, helped support the District Court’s “undue burden” conclusion.
Turning to the surgical-center requirement, the Court noted that before the law was passed, Texas law required abortion facilities to meet a host of health and safety requirements that were policed by inspections and enforced through administrative, civil, and criminal penalties. The Court found that the new provision imposed a number of additional requirements that were generally unnecessary in the abortion context; that it provided no benefit when complications arise in the context of a medical abortion, which would generally occur after the patient has left the facility; and that abortions taking place in abortion facilities are safer than common procedures occurring in outside clinics not subject to Texas’s ambulatory surgical center requirements. The Court also agreed with the District Court’s finding that more surgical centers were not likely to fill the gap left by closed facilities due to the fact that abortion facilities would have to incur considerable costs to meet the requirements of the law.
Justice Ginsburg concurred, finding that laws like H.B. 2 that “do little or nothing for health, but rather strew impediments to abortion,” cannot survive judicial inspection. Justice Thomas dissented, finding the Court’s “free-form balancing test” was contrary to Casey, which did not weigh the benefits and burdens of the Pennsylvania law at issue in that case. Justice Thomas found that the majority applied the undue-burden standard in a way that looked far less like the Court’s post-Casey precedents and far more like the strict-scrutiny standard rejected in Casey. Justice Thomas concluded that “as the Court applies whatever standard it likes to any given case, nothing but empty words separates our constitutional decisions from judicial fiat.”
Justice Alito, in a dissent joined by Justices Roberts and Thomas, criticized the majority’s decision largely on res judicata grounds, finding that the matters at issue were already litigated in a prior suit brought by the same parties shortly after the passage of H.B. 2. In that suit, the abortion providers lost on the merits before the Fifth Circuit, and chose not to petition to the Supreme Court for review. Justice Alito found that “what the Court has done here is to create an entirely new exception to the rule that a losing plaintiff cannot relitigate a claim just because it now has new and better evidence.” Justice Alito also found that the providers “offered scant evidence on the capacity of the clinics that are able to comply with the admitting privileges and ASC requirements” or on those clinics’ geographic distribution, and that it was far from clear that there had been a material impact on access to abortion.
The case is Whole Woman’s Health v. Hellerstedt, No. 15-274.