SCOTUS to hear first major abortion case since 2007

See also: Major cases of the Supreme Court October 2015 term

Whole Woman’s Health v. Hellerstedt
Docket number: 15-274
Court: United States Supreme Court
Court membership
Chief Justice John G. Roberts Associate Justices Anthony Kennedy • Clarence Thomas Ruth Bader Ginsburg • Steven G. Breyer Samuel Alito • Sonia Sotomayor • Elena Kagan

March 1, 2015

By Kelly Coyle

On Wednesday, the Supreme Court will hear oral arguments in the Texas abortion law case, Whole Woman’s Health v. Hellerstedt. The justices will consider whether two provisions of Texas House Bill 2, which require abortion doctors and facilities to meet certain requirements, constitute "undue interference from the State" in a woman's right to have an abortion.

Whole Woman’s Health v. Hellerstedt is the first abortion case added to the court's docket since 2007 and the first major case to be heard without the presence of Justice Antonin Scalia, who died unexpectedly on February 13, 2016.

Texas House Bill 2 requires that doctors who perform abortions have hospital admitting privileges at a facility within 30 miles of where an abortion is performed and that abortion facilities meet the same requirements as outpatient surgery centers. The court will address whether these requirements place "undue burdens" on a woman who wants an abortion, a standard instituted in Roe v. Wade and reaffirmed in Planned Parenthood of Southeastern Pennsylvania v. Casey.

Steven Aden, senior counsel with Alliance Defending Freedom, said, "It's overdue. The Casey standard is unworkable and was ill-designed to begin with. We have more litigation now over the meaning of the Casey standard than we’ve ever had."

A group of women's healthcare facilities and abortion doctors are asking the court to strike down what they view as some of the prohibitive provisions of HB 2 by clarifying the Casey standard, which prohibits laws that place an "undue burden" on woman seeking an abortion. They also "want the Court to order lower courts to judge whether new restrictions on abortions actually would work to protect women’s health," according to SCOTUSblog's Lyle Denniston. In their writ of certiorari, they argue that some of the provisions of HB 2 "would delay or prevent thousands of women from obtaining abortions and lead some to resort to unsafe or illegal methods of ending an unwanted pregnancy. ... Further, every woman in Texas would have to live under a legal regime that fails to respect her equal citizenship status and would force her to grapple with unnecessary and substantial obstacles as a condition of exercising her protected liberty."

Before HB 2 was enacted in 2013, 40 facilities in Texas performed abortions, and the number dropped to 18 by the time the writ of certiorari was submitted. The petitioners argue that the number could fall to 10 abortion facilities, if all of the provisions of HB 2 are ruled constitutional.

In response, Texas Department of State Health Services Commissioner Dr. John Hellerstedt, who is representing the state, argues that the provisions of HB 2 were not enacted to make it more difficult for a woman to have an abortion but "to raise standards of care and ensure the health and safety of all abortion patients." The brief for the state explained that the following measures were included in the bill to ensure that a women who wants an abortion can safely access the procedure: "Women who must travel more than 100 miles to an abortion facility are also exempted from the preexisting 24 hour waiting period after informed consent, as only a 2-hour waiting period would apply. ...Further, Texas law prohibits hospitals and health care facilities from discriminating against physicians who perform abortions." In addition, "HB2 left in place existing laws allowing abortions to be performed at general ASCs and hospitals, both of which are licensed by the State."

The death of Justice Scalia creates the possibility that the court will issue a 4-4 decision in the case. If that happens, the ruling of the United States Court of Appeals for the 5th Circuit will stand, and Texas will be able to fully enforce the provisions of Texas House Bill 2. However, it will not create a nationwide precedent. According to SCOTUSblog's Amy Howe, a ruling in favor of Texas could mean that more states adopt similar laws. Howe wrote, "On a practical level, several other states – including Wisconsin, Louisiana, and Alabama – have similar laws, and a decision upholding the requirements could prompt more states to follow suit."

Laws like Texas' HB 2 were proposed in state legislatures across the country after the 2010 elections ushered in 21 Republican trifectas. A state government trifecta occurs when one political party holds the governorship, a majority in the state senate and a majority in the state house. Before the 2010 elections, there were only nine Republican trifectas. After the 2010 elections, there were 21, and there are currently 24. According to the Guttmacher Institute and Americans United for Life, "states were able to enact a record 231 abortion-regulating bills between 2011 and 2014." If Republicans maintain their trifectas after the 2016 elections and the Supreme Court splits or rules in favor of Texas, state legislators will likely continue to introduce abortion-regulating legislation designed to reduce the number of abortions and protect women's health.

Citing Justice Anthony Kennedy's positions in abortion cases, including Planned Parenthood of Southeastern Pennsylvania v. Casey and Gonzales v. Carhart, Shaakirrah R. Sanders, an associate professor at the University of Idaho College of Law, argued that Kennedy could side with the liberal justices resulting in a 5-3 decision in favor of the abortion providers. If the abortion providers win, Texas and other states will have to roll back their abortion-regulating legislation.

The court will likely issue a decision in June as the 2016 elections near and Republicans and Democrats continue to debate who will fill Scalia's seat.

Questions presented: 1. "In Planned Parenthood of Southeastern Pennsylvania v. Casey, this Court reaffirmed that the decision to end a pregnancy prior to viability is a fundamental liberty protected by the Due Process Clause. 505 U.S. 833, 845-46 (1992). It held that a restriction on this liberty is impermissible if it amounts to an undue burden. Id. at 876-77. Under this standard, states may not enact '[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.' Id. at 878." (a). "When applying this standard, does a court err 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?" (b). "Did the Fifth Circuit err 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?" 2. "Did the Fifth Circuit err in holding that res judicata provides a basis for reversing the district court’s judgment in part?"

See also

• Supreme Court of the United States
• History of the Supreme Court
• Major cases of the Supreme Court October 2015 term
• Supreme Court cases, October term 2015
• What happens to this term's major SCOTUS cases in a 4-4 split?
• Process to fill the vacated seat of Justice Antonin Scalia
• 2016 presidential candidates on the death of Antonin Scalia and the Supreme Court vacancy
• Members of Congress on the death of Antonin Scalia and the Supreme Court vacancy
• State government trifectas
• Gubernatorial and legislative party control of state government

External links

• SupremeCourt.gov
• American Bar Association, 2015-2016 Supreme Court Briefs