Abortion and Whole Woman’s Health v. Hellerstedt

Summary

In 2013, the Texas legislature passed House Bill 2 (H.B. 2), a measure that prescribed new requirements for abortion facilities and physicians who perform or induce abortions in Texas.¹ Supporters of the bill maintained that these requirements would guarantee a higher level of care for women seeking abortions.² Opponents, however, characterized the requirements as unnecessary and costly, and argued that they would make it more difficult for abortion facilities to operate.³

Since its enactment, critics of H.B. 2 have focused on two of the measure's requirements, in particular. First, H.B. 2 requires a physician who performs or induces an abortion to have admitting privileges at a hospital within 30 miles from the location where the abortion is performed or induced. In general, admitting privileges allow a physician to transfer a patient to a hospital if complications arise in the course of providing an abortion. Second, H.B. 2 requires an abortion facility to satisfy the same standards as an ambulatory surgical center (ASC). These standards address architectural and other matters related to the physical plant, as well as operational matters such as staffing and medical records systems.

H.B. 2's admitting privileges and ASC requirements have been challenged by a group of abortion providers and physicians in Whole Woman's Health v. Hellerstedt, a case that is currently before the U.S. Supreme Court (Court). In Whole Woman's Health, the Court has been asked to review a decision by the U.S. Court of Appeals for the Fifth Circuit (Fifth Circuit) that upheld both requirements.

In seeking review of the Fifth Circuit's decision, Whole Woman's Health asked not only about the validity of the admitting privileges and ASC requirements. The abortion provider also asked the Court to resolve a conflict between the Fifth Circuit and the U.S. Courts of Appeals for the Seventh and Ninth Circuits (hereinafter referred to as the Seventh Circuit and Ninth Circuit) involving the application of the undue burden standard that is used to evaluate abortion regulations. This report examines Whole Woman's Health v. Cole, the Fifth Circuit's decision, as well as the undue burden standard, and the contrasting approaches used by the federal appellate courts to determine whether an abortion regulation imposes an undue burden on a woman's ability to have an abortion.

Although the Fifth Circuit rejected the facial challenge to the admitting privileges requirement, it upheld an injunction of the requirement as applied to the abortion facility in McAllen, when it utilizes a specific physician.³⁵ This physician was unsuccessful at obtaining admitting privileges at local hospitals for reasons other than his competence.³⁶

At the same time, however, the Fifth Circuit reversed an injunction of the requirement as applied to the abortion facility in El Paso. Citing a nearby abortion facility in Santa Teresa, New Mexico, and the fact that people travel regularly between the two cities for medical care, the court maintained that the admitting privileges requirement does not impose an undue burden.³⁷ The Fifth Circuit distinguished the Texas admitting privileges requirement from a similar Mississippi requirement that it invalidated in Jackson Women's Health Organization v. Currier, a 2014 decision.³⁸ The Fifth Circuit explained that invalidating the Mississippi requirement would have led to the closure of the last abortion facility in the state.³⁹ An invalidation of the Texas requirement would not have the same effect.

State laws that require abortion providers to satisfy the same standards as ASCs have become increasingly more common.⁴⁰ Texas regulations define an ASC as a facility "that primarily provides surgical services to patients who do not require overnight hospitalization or extensive recovery, convalescent time or observation."⁴¹ Under Texas law, ASCs are required to satisfy a variety of operating, fire prevention and safety, and construction standards.⁴²

The Fifth Circuit determined that a facial challenge to the ASC requirement would also fail on the merits because the requirement does not have the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion. The court maintained that the plaintiffs failed to show that the ASC requirement was adopted for an improper purpose.⁴⁵ While the lower court found an improper purpose based on what it concluded was a lack of credible evidence to support the proposition that abortions performed in ASCs lead to better health outcomes, the Fifth Circuit observed: "All of the evidence referred to by the district court is purely anecdotal and does little to impugn the State's legitimate reasons for the Act."⁴⁶

In addition, the Fifth Circuit found that the ASC requirement does not have the effect of placing a substantial obstacle in the path of a woman seeking an abortion. In Casey, the Court indicated that if a law would be invalid in a large fraction of the cases in which it is relevant, it should be found to have an improper effect.⁴⁷ Notably, the Court considered the effect of Pennsylvania's spousal notification requirement only on married women who did not want to notify their husbands of their plans to have an abortion, rather than its effect on all women or all pregnant women in the state.⁴⁸ In this equation, the Court concluded that the spousal notification requirement would have an effect in a large fraction of the relevant cases.

In Cole, however, the Fifth Circuit found that the ASC requirement would not have a similar effect. After considering the number of women of reproductive age in Texas and the number of women of reproductive age who would have to travel more than 150 miles to have an abortion because of the implementation of both the admitting privileges and ASC requirements, the court determined that only 16.7% of women of reproductive age would have to travel more than 150 miles to have an abortion.⁴⁹ The Fifth Circuit reasoned that 16.7% does not constitute a large fraction of the relevant cases, and thus, the effect of the ASC requirement is not improper.⁵⁰

The Fifth Circuit declined, however, to affirm the lower court's judgment involving the ASC requirement as applied to the El Paso facility. Because abortion services are available at the facility in Saint Teresa, NM, and there was evidence that many women traveled to that facility before enactment of H.B. 2, the court concluded that the ASC requirement did not place a substantial obstacle in the path of women seeking an abortion in the El Paso area.⁵⁴

In November 2015, the Supreme Court agreed to review the Fifth Circuit's decision in Whole Woman's Health. The Court is considering the following questions with regard to the case, now titled Whole Woman's Health v. Hellerstedt:⁵⁵

1a. When applying the undue burden 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?

1b. Did the Fifth Circuit err in concluding that the undue burden 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?⁵⁶

In its petition for review by the Court, Whole Woman's Health argued that the Fifth Circuit's refusal to consider the extent to which an abortion regulation actually promotes women's health conflicts with the approaches taken by the Seventh Circuit and Ninth Circuit.⁵⁷ In applying the undue burden standard, both appellate courts conducted this analysis. In Planned Parenthood Arizona, Inc. v. Humble, for example, the Ninth Circuit explained that, in applying the undue burden standard, it compares the extent of the burden a law imposes on a woman's right to abortion with the strength of the state's justification for the law.⁵⁸ The court explained further: "The more substantial the burden, the stronger the state's justification for the law must be to satisfy the undue burden test; conversely, the stronger the state's justification, the greater the burden may be before it becomes 'undue.'"⁵⁹

The Seventh Circuit articulated a similar approach to applying the undue burden standard in Planned Parenthood of Wisconsin, Inc. v. Van Hollen.⁶⁰ In that 2013 case, the court observed:

The cases that deal with abortion-related statutes sought to be justified on medical grounds require not only evidence ... that the medical grounds are legitimate but also that the statute not impose an "undue burden" on women seeking abortions ... The feebler the medical grounds, the likelier the burden, even if slight, to be "undue" in the sense of disproportionate or gratuitous.⁶¹

In light of the approaches taken by the Ninth and Seventh Circuits, Whole Woman's Health argued that the Fifth Circuit's interpretation of the undue burden standard is erroneous, and contended that review by the Court was needed to resolve this split in authority.

Whole Woman's Health also challenged the Fifth Circuit's conclusion that res judicata bars it from considering newly developed facts that could have an impact on the provider's facial challenge to the ASC requirement. Whole Woman's Health argued that when a claim rests on facts that develop after a judgment is entered in a prior case, the claim is not barred by that judgment, and a court may award any remedy that is otherwise appropriate.

Hellerstedt, the Commissioner of the Texas Department of State Health Services, rejects the arguments made by Whole Woman's Health.⁶² He contends that the balancing contemplated by Whole Woman's Health and used by the Seventh and Ninth Circuits undermines the undue burden standard established by Casey.⁶³ Hellerstedt argues that the undue burden standard analyzes the degree of a law's burden on women seeking abortions and does not involve weighing medical judgments: "The undue-burden test does not reevaluate policy judgments or choose between competing testimony of medical professionals."⁶⁴

Hellerstedt also maintains that Whole Woman's Health's facial challenges are barred by res judicata.⁶⁵ He argues that the claim involving the admitting privileges requirement was raised, litigated, and defeated in Abbott II.⁶⁶ He also contends that the claim involving the ASC requirement is barred because it could have been brought in that case.⁶⁷

Hellerstedt also maintains that both requirements will not have an effect in a large fraction of the relevant cases because an abortion facility will remain operational in each metropolitan area where Whole Woman's Health alleges that one would close if the Fifth Circuit's judgment is affirmed.⁶⁹ Citing trial evidence, he notes that if H.B. 2 took full effect, at least 86.6% of reproductive-age Texas women would live within 150 miles of an operating abortion facility.⁷⁰ According to Hellerstedt, if such a high percentage of women have access to a facility, H.B. 2 "cannot be facially invalidated on the premise that travel distances to clinics create a 'substantial obstacle' to abortion access in a large fraction of cases."⁷¹

The Supreme Court heard oral arguments in Whole Woman's Health v. Hellerstedt on March 2, 2016. Because of Justice Antonin Scalia's death on February 13, 2016, only eight justices were present for the arguments. Although it is not certain whether Justice Scalia would have voted to uphold the admitting privileges and ASC requirements, his steadfast criticism of Roe and Casey might arguably suggest a likelihood of support for the requirements.⁷²

With Justice Scalia's death, Justice Anthony M. Kennedy, who coauthored the joint opinion in Casey and is often viewed as holding the deciding vote in close cases, could play an even more critical role in how Whole Woman's Health is decided. If Justice Kennedy does not join the Court's four perceived liberal Justices who are expected to invalidate the requirements, and the Justices are evenly divided on the case, the Court will likely either enter a judgment that affirms the Fifth Circuit's decision or order the case to be reargued at a later time.⁷³

A decision in Whole Woman's Health is expected by June 2016.

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