On Wednesday, March 2, 2016, eight justices, missing their late, boisterous colleague Antonin Scalia, heard oral arguments on Whole Woman’s Health v. Hellerstedt, the blockbuster abortion access case which challenges a Texas law’s thinly veiled attempt to reduce the number of operating abortion clinics in the state. Hellerstedt threatens to eviscerate the precious right preserved in Planned Parenthood v. Casey (1992), which set the precedence of evaluating abortion regulation laws on the basis of “undue burden,” defined as “a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Under this new paradigm, the Court struck down the Pennsylvania law’s requirement that married women notify their spouses before obtaining an abortion but upheld its provisions requiring informed consent, parental consent for minors, and a 24-hour waiting period.
The two notable elements of the 2013 Texas omnibus law HB2 at stake in Hellerstedt are sweeping measures which prescribe that abortion doctors must obtain admitting privileges in local hospitals less than 30 miles away and that clinics must fulfill requirements of ambulatory surgical centers in order to be legally operational. Texas lawmakers and defenders of the bill counter that these regulations aim to protect the safety and welfare of women seeking abortions. However, these same provisions on an already safe procedure have been deemed medically unnecessary by the American Medical Association, the American College of Obstetricians and Gynecologists and other leading health care experts.
In oral arguments on Wednesday, Justice Elena Kagan astutely questioned why it is in Texas’ interest and jurisdiction to regulate an already safe procedure like abortion and not other more risky medical procedures, to which Keller responded, “legislatures react to topics that are of public concern.” Keller succinctly articulates precisely what this case is about: not women’s health, but an invasive political agenda that responds more to the public’s sense of morality than the health and civil rights of women.
There are two main legal questions at stake in Whole Woman’s Health v. Hellerstedt. First, should the lower court have considered if H.B. 2 furthered Texas’ stated purpose of protecting the health of women seeking abortions when applying the “undue burden” standard? Second, do the restrictions put forth in H.B. 2 constitute an “undue burden” on women’s access to abortion? Arguably, the appellate court accepted Texas’ justification outright without examining whether it actually had the effect of protecting women’s health, which is legally questionable. Additionally, the clinics involved in the case believe that Texas’ restrictions constitute an “undue burden” because they do nothing to protect patients and only serve to make it more difficult for many women to obtain abortions.
With the regulations in place, Texas is left with at most 10 clinics (some say only 6), down from 40, across the 268,580 square miles of Texas, the home of 27.5 million people. In fact, one million women would be more than 150 miles away from the nearest abortion clinic. Striking at the heart of this issue, Justice Stephen Breyer asked, “If you suddenly had at least 10,000 … women who have to travel 150 miles to get their abortions,” he said, “are there going to be more women or fewer women who die of complications?”
With the recent death of conservative Justice Antonin Scalia, the Court has an even number of justices voting in Whole Woman’s Health. Justice Anthony Kennedy, the current ideological center of the Court and likely “swing vote,” is the last remaining member of the Casey plurality that first developed the “undue burden” standard central to the present case. If Kennedy sides with the conservatives, the Court may be divided 4-4 in its decision. If this occurs, the ruling of the Fifth Circuit Court will stand, and H.B. 2’s provisions will remain in effect. However, the decision would not set a national precedent, and the Fifth Circuit decision is only binding for the states within its jurisdiction (Texas, Louisiana, and Mississippi). Alternatively, if Kennedy sides with the liberal justices, Texas’ restrictions could be struck down 5-3. In this scenario, Scalia’s presence on the bench would not have impacted the ultimate result, and more women would retain their right to choose a safe procedure.
This article was written by Meredith Forsyth, Larry Huang and Kerry Synan of the GU College Democrats Women’s Advocacy Team.