Dinner | Hellerstedt, history and reproductive freedom
By Deborah Dinner | Emory Law | July 15, 2016
In Whole Woman’s Health v. Hellerstedt, the Supreme Court buttressed constitutional protection for women’s reproductive freedom. A five-justice majority struck down a Texas statute that required abortion providers to have local hospital admitting privileges and clinics to meet costly standards for ambulatory surgical centers. Justice Anthony Kennedy’s move to join the liberal wing of the court—in 2007, he had written the majority opinion in a 5-4 decision restricting abortion procedures—came as a welcome surprise for abortion rights advocates.
The challenged Texas statute exemplified a trend among state legislatures to enact TRAP (Targeted Regulation of Abortion Providers) laws. These laws, which impose uniquely burdensome regulation on abortion clinics and doctors, purport to safeguard women’s health. They represent a strategic turn within the anti-abortion movement, from the language and symbols of protecting fetuses toward a discourse of protecting women. In reality, these laws make it exceedingly difficult for women to gain access to safe, high-quality reproductive healthcare. Whole Woman’s Health affirmed the federal courts’ responsibility to scrutinize the medical evidence and rationales that states use to justify TRAP requirements.
Had it been upheld, the Texas statute would have severely constrained the ability of women, particularly poor and rural women, to seek previability abortions. Approximately 5.4 million women of reproductive age live in Texas. After the implementation of the “admitting privileges” provision, over half of Texas’ 42 clinics closed. The district court concluded on the basis of expert testimony that full implementation of the statute would reduce the number of clinics in the state to seven or eight. That would increase the number of women living more than 150 miles away from a clinic by 350 percent and the number living more than 200 miles away by about 2,800 percent. Women would face long wait times and overcrowded facilities; for many, the trip to distant clinics would be infeasible and unaffordable. The district court reasoned that it “strained credulity” to imagine Texas’ remaining clinics would meet the demand for services.
In striking down the Texas law, the Supreme Court applied a longstanding framework for balancing the states’ interest in regulating abortion with women’s reproductive freedom. In the 1992 case of Planned Parenthood v. Casey, the court held that a statute that places an “undue burden” on a woman’s exercise of her right to an abortion is unconstitutional. An “undue burden” exists when the statute has the “purpose or effect” of presenting “a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” In Whole Woman’s Health, the court held that both the admitting-privilege and surgical-center requirements placed substantial obstacles in the path of women seeking abortion and, therefore, constituted undue burdens in violation of the 14th Amendment.
Of particular importance, Justice Stephen Breyer’s majority opinion affirmed that courts evaluating abortion regulations must apply a higher level of scrutiny than rational-basis review. The 5th Circuit opinion in Whole Woman’s Health had held that an abortion regulation need only be reasonably related to a legitimate state purpose. Breyer’s majority opinion held that this approach was insufficiently robust and incompatible with the undue-burden analysis.
Whole Woman’s Health makes it harder for states merely to assert protective rhetoric to defend the constitutionality of abortion regulations. The court affirmed that courts should not simply defer to legislatures but instead should independently scrutinize the evidence underpinning an abortion regulation. As part of this review, the “undue burden” standard requires courts to balance the benefits and burdens of an abortion regulation. The court found a total absence of evidentiary support for Texas’ contention that the challenged statute would benefit women’s health. The court noted, for example, that abortions are so safe that abortion providers do not perform hospital surgeries with the frequency necessary to gain admitting privileges.
The decision will have a broad impact. The day after its ruling, the court declined to review lower court rulings blocking TRAP laws in Mississippi and Wisconsin. Prior to Whole Woman’s Health, 10 states had admitting-privilege requirements and six states had ambulatory surgical-center requirements. These are all likely to fall in the wake of the court’s ruling.
The court’s decision provides an opportunity to consider what true health protection for women might entail. Beginning in the 1960s, reproductive justice movements fought for far more than abortion rights. Activists, often led by women of color, combatted forced sterilization and advocated healthcare access, childcare and economic support for families. Today, their vision provides an apt reference point for a substantive dialogue about what state responsibility to protect health means.
—Deborah Dinner, associate professor of law