The last week of June and the end of the Supreme Court’s term was a critical one for women’s health issues and reproductive rights. The Supreme Court issued its long-anticipated decision in Whole Women’s Health v. Hellerstedt, No. 150274, the case challenging the State of Texas’ restrictive regulations on abortion clinics. Specifically the Plaintiffs in Whole Women’s Health challenged two provisions of Texas’s H.B. 2: (1) a requirement that any physician performing or inducing an abortion had to have admitting privileges at a hospital within 30 miles from the clinic where he or she worked and (2) a requirement that abortion clinics meet the minimum standards for ambulatory surgical centers under Texas law. The Court held that both laws were unconstitutional, applying the standard set forth in Planned Parenthood v. Casey in 1992. (505 U.S. 833.)
Prior to the law taking effect, a previous case challenging the same law captioned Planned Parenthood of Greater Texas v. Abbott, 748 F.3d 583, was filed. The Abbott plaintiffs, some of whom were also plaintiffs in Whole Women’s Health, argued that H.B. 2’s admitting privileges requirement was facially unconstitutional under the Supreme Court’s precedent in Planned Parenthood v. Casey. The Abbott plaintiffs prevailed in the district court, but lost at the Fifth Circuit, and did not petition for certiorari in the Supreme Court. Among other things, the Fifth Circuit found that the plaintiffs in Abbott had not provided sufficient evidence that abortion practitioners would be unable to comply with the admitting privileged requirement of H.B. 2, and found that all of the “major Texas cities” would still have multiple clinics that could provide abortions and where physicians would have or be able to obtain the required admitting privileges. One week after the Fifth Circuit’s decision in Abbott, a group of abortion providers, many of whom were also plaintiffs in Abbott, filed the Whole Women’s Health case, asserting as-applied challenges to H.B. 2.
The State of Texas took a two-pronged approach to its defense of H.B. 2. First, it argued that the claims brought by the plaintiffs in Whole Women’s Health were barred by the doctrines of claim preclusion and res judicata, because the same plaintiffs had previously challenged the same statute in Abbott. Second, the State argued that the admitting privileges and surgical center requirements did not place an undue burden on women’s constitutional right to abortion care and were necessary to protect women’s health and safety. The Supreme Court rejected both of these arguments.
In an opinion authored by Justice Breyer, and joined by Justices Kennedy, Sotomayor, and Kagan, and in which Justice Ginsburg concurred, the court first disposed of the procedural res judicata argument. The Court held that “Petitioners’ postenforcement as-applied challenge is not ‘the very same claim’ as their preenforcement facial challenge,” noting that “development of new material facts” can create a new claim. In this case, the court found that factual developments that had occurred since the filing of the Abbott case—namely indisputable evidence of actual clinic closures—showed constitutional harm which may have been too speculative at the time of the earlier filing, and thus gave rise to a new constitutional claim. (Whole Women’s Health, p. 12.) The Court then held that the challenge to the surgical center requirement, which was not raised in Abbott, was not barred by the doctrine of claim preclusion because “the surgical-center provision and the admitting-privileges provision are separate, distinct provisions of H.B. 2,” and the Abbott plaintiffs were thus not obligated to challenge both provisions together.
After disposing of the procedural issues, the Court addressed the merits of the claims, and found that both provisions of H.B. 2 imposed an undue burden on women’s right to an abortion and were thus facially unconstitutional. The Court noted that the applicable standard from Casey “requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer,” and thus rejected the Fifth Circuit’s articulation of the relevant standards which “impl[ied] that a district court should not consider the existence or nonexistence of medical benefits” conferred by the challenged laws. (Whole Women’s Health at pp. 19-20.) The Court went on to criticize the Fifth Circuit’s articulation of the relevant standard for “equat[ing] the judicial review applicable to the regulation of a constitutionally protected personal liberty with the less strict review applicable where, for example, economic legislation is at issue.” (Id. at p. 20.)
The Court then applied the standard from Casey, and found that both provision of H.B. 2 were facially unconstitutional. The Court noted that the record evidence showed that abortions required hospital admission only rarely, and that usually any complications that did require admission occurred not while a patient was in a clinic, but several days later. In such cases, a patient would simply go to the Emergency Room from home, not be transferred and admitted by the physician who performed the abortion. Against this evidence, the Court found that “the admitting privileges requirement places a ‘substantial obstacle in the path of a woman’s choice.’” (Id. at p. 24.) The majority opinion also disposed of the argument that a potential benefit of additional regulation and admitting privilege requirements might be the closure of unsafe clinics like the infamous Kermit Gosnell clinic in Philadelphia, noting that “Gosnell’s deplorable crimes could escape detection only because his facility went uninspected for more than 15 years” and that “[p]re-existing Texas law already contained numerous detailed regulations covering abortion facilities” that, if enforced, would be more than adequate to prevent another Kermit Gosnell from operating. (Id. at p. 27.)
The Court made similar findings addressing the ambulatory surgical center requirement. It noted that abortion is an extraordinarily safe procedure, with complications occurring in less than one quarter of one percent of first trimester abortions, making abortion safer than a variety of common minor surgical procedures not performed in ambulatory surgical centers including colonoscopies (with a mortality rate ten times higher than abortions) and childbirth (with a mortality rate fourteen times higher). (Id. at p. 30.) Thus, the court found that “the record evidence…supports the ultimate legal conclusion that the surgical-center requirement is not necessary.” (Id. at p. 32.) And like the admitting-privileges requirement, the ambulatory surgical center requirement also imposed an undue burden on women’s access to abortion care. In so holding, the Court relied on testimony that the law would result in an increase in the number of abortions that the surviving clinics would have to provide annually from 14,000 each to between 60,000 and 70,000—a five-fold increase. (Id.)
The court finally disposed of Texas’s remaining arguments. First, it found that the severability provision in the statute could not operate to salvage it because the law is unconstitutional on its face. (Id. at p. 37.) The Court explained that “Texas’ attempt to broadly draft a requirement to sever ‘applications’ does not require us to proceed in piecemeal fashion when we have found the statutory provisions at issue facially unconstitutional,” and noted that to hold otherwise would be to permit legislatures to immunize statutes from facial review by simply including severability provisions. (Id. at p. 38.) The Court next rejected Texas’ argument that the law did not impose an undue burden because it did not impact a large fraction of Texas women of reproductive age, explaining that “the relevant denominator is ‘those [women] for whom [the provision] is an actual rather than an irrelevant restriction.” (Id. at p. 39.) Finally, the Court rejected the argument that Simopoulos v. Virginia, 462 U.S. 506 (1983) controlled as to the surgical center requirement, distinguishing Simopoulos on the grounds that the regulation at issue in that case had applied only to second trimester abortions, and that in that case the petitioners had waived any argument that the regulation did not protect women’s health. (Id.)
Justice Ginsberg authored a short concurrence, summing up the holding of the case in her final sentence:“Targeted Regulation of Abortion Providers laws like H.B. 2 that ‘do little or nothing for health, but rather strew impediments to abortion,’ cannot survive judicial inspection.” Justices Thomas and Alito both authored dissents, with Thomas’s dissent focusing on the merits and Alito’s on the procedural issues in the case.
The impact of the decision is already being felt. Following the ruling, the Supreme Court summarily denied petitions for writs of certiorari in two similar cases, allowing lower court rulings striking down unconstitutional regulations on clinics to stand. Those cases are CURRIER, MS HEALTH OFFICER V. JACKSON WOMEN'S HEALTH ORG. and SCHIMEL, ATT'Y GEN. OF WI V. PLANNED PARENTHOOD OF WI, ET AL. In addition, the Alabama Attorney General announced that Alabama would not further pursue its own appeal of a decision striking down a similar Alabama law, acknowledging that “there is no good faith argument that Alabama’s law remains constitutional in light of the Supreme Court ruling.” (See Wall Street Journal, June 26, 2016, “Supreme Court Denies Mississippi, Wisconsin Efforts to Reinstate Abortion Laws”, available at http://www.wsj.com/articles/supreme-court-denies-mississippi-wisconsin-efforts-to-reinstate-abortion-laws-1467124416.) Numerous other states have TRAP laws similar to those at issue in Whole Women’s Health that are now far less likely to withstand judicial scrutiny. Further information on TRAP laws that were in effect as of March of 2016 can be found at https://www.guttmacher.org/sites/default/files/pdfs/spibs/spib_TRAP.pdf.
In other reproductive rights news, the Court also denied certiorari in Stormans, Inc. v. Wiesman, which challenged Washington state regulations requiring pharmacists to dispense emergency contraception and other medications irrespective of their religious beliefs. The lower court had upheld the regulation, and the denial of the petition leaves this ruling intact
Vanessa Adriance is co-chair of WLALA's Pro-Choice and Reproductive Rights Committee.