Abortion, Hospital Admitting Privileges, and
Whole Woman’s Health v. Cole
Jon O. Shimabukuro
Legislative Attorney
September 25, 2015
Congressional Research Service
7-5700
www.crs.gov
R44205
Abortion, Hospital Admitting Privileges, and Whole Woman’s Health v. Cole
Summary
At least 15 states have adopted laws or regulations that require physicians who perform abortions
to have admitting privileges at a nearby hospital. In general, admitting privileges allow a
physician to transfer a patient to a hospital if complications arise in the course of providing an
abortion. Admitting privileges requirements have proven to be controversial, with many of the
requirements being challenged by abortion providers. In Whole Woman’s Health v. Cole, for
example, an abortion provider challenged Texas’s admitting privileges requirement on various
grounds, including its imposition of an undue burden on the ability of women to seek abortions.
Following an adverse decision by the U.S. Court of Appeals for the Fifth Circuit (“Fifth Circuit”),
Whole Woman’s Health petitioned the U.S. Supreme Court (“Court”) for review of that decision
in September 2015. If the Court agrees to hear the case, it will be the first substantive abortion
case to be considered by the Court since 2007.
This report discusses the Fifth Circuit’s decision in Cole, and the application of the undue burden
standard that is used to evaluate abortion regulations. In its petition, Whole Woman’s Health has
asked the Court to resolve a conflict between the Fifth Circuit and two other federal appellate
courts over the application of the undue burden standard.
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Abortion, Hospital Admitting Privileges, and Whole Woman’s Health v. Cole
Contents
The Undue Burden Standard and Planned Parenthood of Southeastern Pennsylvania v.
Casey ............................................................................................................................................ 1
Hospital Admitting Privileges and Whole Woman’s Health v. Cole ................................................ 3
Petition for Supreme Court Review ................................................................................................ 5
Contacts
Author Contact Information ............................................................................................................ 6
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Abortion, Hospital Admitting Privileges, and Whole Woman’s Health v. Cole
At least 15 states have adopted laws or regulations that require physicians who perform abortions
to have admitting privileges at a nearby hospital.1 In general, admitting privileges allow a
physician to transfer a patient to a hospital if complications arise in the course of providing an
abortion. Admitting privileges requirements have proven to be controversial, with many of the
requirements being challenged by abortion providers. In Whole Woman’s Health v. Cole, for
example, an abortion provider challenged Texas’s admitting privileges requirement on various
grounds, including its imposition of an undue burden on the ability of women to seek abortions.2
Following an adverse decision by the U.S. Court of Appeals for the Fifth Circuit (“Fifth Circuit”),
Whole Woman’s Health petitioned the U.S. Supreme Court (“Court”) for review of that decision
in September 2015. If the Court agrees to hear the case, it will be the first substantive abortion
case to be considered by the Court since 2007.
In seeking review of the Fifth Circuit’s decision, Whole Woman’s Health has asked not only
about the validity of the admitting privileges requirement, but has 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
discusses the undue burden standard, the Fifth Circuit’s decision in Cole, 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.
The Undue Burden Standard and Planned
Parenthood of Southeastern Pennsylvania v. Casey
The undue burden standard that is now used to evaluate abortion regulations was formally
adopted by the Court in Planned Parenthood of Southeastern Pennsylvania v. Casey, a 1992
decision involving five provisions of the Pennsylvania Abortion Control Act.3 In a joint opinion,
the Court reaffirmed the basic constitutional right to an abortion, while simultaneously allowing
new restrictions to be placed on the availability of the procedure. The Court declined to overrule
Roe v. Wade, its 1973 decision that first recognized the right to terminate a pregnancy, explaining
the importance of following precedent: “The Constitution serves human values, and while the
effect of reliance on Roe cannot be exactly measured, neither can the certain cost of overruling
Roe for people who have ordered their thinking and living around that case be dismissed.”4
At the same time, however, the Court refined its holding in Roe by abandoning the trimester
framework articulated in the 1973 decision, and rejecting the strict scrutiny standard of judicial
review it had previously espoused.5 In Casey, the Court adopted a new undue burden standard
1 See Ala. Code § 26-23E-4; Ariz. Rev. Stat. § 36-449.03; Ark. Code Ann. § 20-16-1504; Fla. Stat. § 390.012; Ind.
Code § 16-34-2-4.5; Kan. Stat. Ann. § 65-4a09; La. Stat. Ann. § 40:1299.35.2; Miss. Code Ann. § 41-75-1; Mo. Rev.
Stat. § 188.080; N.D. Cent. Code § 14-02.1-04; Okla. Stat. tit. 63, § 1-748; Tenn. Code Ann. § 39-15-202; Tex. Health
& Safety Code Ann. § 171.0031; Utah Admin. Code r. 432-600-13; Wis. Stat. § 253.095.
2 Whole Woman’s Health v. Lakey, 46 F.Supp.3d 673 (W.D. Tex. 2014), aff’d in part, modified in part, vacated in
part, and rev’d in part, 790 F.3d 563 (5th Cir. 2015). Kirk Cole is currently serving as Interim Commissioner of the
Texas Department of State Health Services following the resignation of Dr. David Lakey. Cole is now the named
defendant in the case.
3 505 U.S. 833 (1992).
4 Id. at 856.
5 For additional information on Roe v. Wade, see CRS Report 95-724, Abortion Law Development: A Brief Overview,
by Jon O. Shimabukuro.
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that attempts to reconcile the government’s interest in potential life with a woman’s right to
terminate her pregnancy. The Court observed:
The very notion that the State has a substantial interest in potential life leads to the
conclusion that not all regulations must be deemed unwarranted. Not all burdens on the
right to decide whether to terminate a pregnancy will be undue. In our view, the undue
burden standard is the appropriate means of reconciling the State’s interest with the
woman’s constitutionally protected liberty.6
According to the Court, an undue burden exists if the purpose or effect of an abortion regulation
is “to place a substantial obstacle in the path of a woman seeking an abortion before the fetus
attains viability.”7
Evaluating the Pennsylvania law under the undue burden standard, the Court concluded that four
of the five provisions at issue did not impose an undue burden. The Court upheld the law’s 24-
hour waiting period requirement, its informed consent provision, its parental consent provision,
and its recordkeeping and reporting requirements. The Court invalidated the law’s spousal
notification provision, which required a married woman to tell her husband of her intention to
have an abortion. Acknowledging the possibility of spousal abuse if the provision were upheld,
the Court maintained: “The spousal notification requirement is thus likely to prevent a significant
number of women from obtaining an abortion. It does not merely make abortions a little more
difficult or expensive to obtain; for many women, it will impose a substantial obstacle.”8
The Court’s decision in Casey was particularly significant because it appeared that the new undue
burden standard would allow a greater number of abortion regulations to pass constitutional
muster. Prior to Casey, the application of Roe’s strict scrutiny standard of review resulted in most
state abortion regulations being invalidated during the first two trimesters of pregnancy. For
example, applying strict scrutiny, the Court invalidated 24-hour waiting period requirements and
informed consent provisions in two cases: City of Akron v. Akron Center for Reproductive Health
and Thornburgh v. American College of Obstetricians and Gynecologists.9
Casey also recognized that the state’s interest in protecting the potentiality of human life extended
throughout the course of a woman’s pregnancy. Thus, the state could regulate from the outset of a
woman’s pregnancy, even to the point of favoring childbirth over abortion. Under the trimester
framework articulated in Roe, a woman’s decision to terminate her pregnancy in the first trimester
could not be regulated generally by the state.
Since Casey, the Court has applied the undue burden standard in just two cases. Stenberg v.
Carhart and Gonzales v. Carhart both involved the so-called “partial-birth” abortion procedure.10
In Stenberg, the Court invalidated a Nebraska law that restricted the procedure, in part, because it
imposed an undue burden on a woman’s ability to terminate a pregnancy. Finding that the
statute’s plain language prohibited the performance of both the “partial-birth” abortion procedure
and another more commonly used abortion procedure, the Court maintained that the law imposed
an undue burden because abortion providers would fear prosecution, conviction, and
imprisonment if they acted.
6 Id. at 876.
7 Id. at 878.
8 Id. at 893-94.
9 462 U.S. 416 (1983); 476 U.S. 747 (1986).
10 530 U.S. 914 (2000); 550 U.S. 124 (2007). For additional information on “partial-birth” abortion, see CRS Report
RL30415, Partial-Birth Abortion: Recent Developments in the Law, by Jon O. Shimabukuro.
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In Gonzales, the Court considered the validity of the federal Partial-Birth Abortion Ban Act of
2003. The Court distinguished the federal law from the Nebraska statute at issue in Stenberg,
noting the inclusion of “anatomical landmarks” that identify when an abortion procedure will be
subject to the law’s prohibitions. Because the plain language of the law did not restrict the
availability of alternate abortion procedures, the Court concluded that it was not overbroad and
did not impose an undue burden on a woman’s ability to terminate her pregnancy.
Hospital Admitting Privileges and Whole Woman’s
Health v. Cole
Texas’s admitting privileges requirement was adopted in 2013. The requirement states that a
physician “performing or inducing an abortion ... must, on the date the abortion is performed or
induced, have active admitting privileges at a hospital that: (A) is located not further than 30
miles from the location at which the abortion is performed or induced; and (B) provides
obstetrical or gynecological health care services.”11 A physician who violates the requirement
may be subject to a fine of up to $4,000.12 The Texas legislature indicated that the requirement
raises the standard and quality of care for women seeking abortions, and protects their health and
welfare.13 Opponents maintain, however, that the requirement will likely result in the closure of
numerous abortion facilities as physicians face difficulty obtaining admitting privileges.14
In 2013, Planned Parenthood challenged the constitutionality of the admitting privileges
requirement, as well as a separate requirement involving the administration of abortion-inducing
drugs.15 In Planned Parenthood of Greater Texas Surgical Health Services v. Abbott, the Fifth
Circuit concluded that the admitting privileges requirement is facially constitutional.16 The Fifth
Circuit found that the requirement does not impose an undue burden despite the possibility of
facility closures and increased travel distances to obtain an abortion. With regard to travel, the
court maintained: “Casey counsels against striking down a statute solely because women may
have to travel long distances to obtain abortions.”17 The Fifth Circuit’s decision is commonly
referred to as “Abbott II” because it was the second decision issued by the court in this case.
Whole Woman’s Health subsequently challenged the admitting privileges requirement as applied
to two specific clinics in El Paso and McAllen, Texas. In 2014, a federal district court concluded
that the requirement is unconstitutional as applied to both clinics and, when considered together
with a state requirement that abortion facilities satisfy the standards set for ambulatory surgical
centers (“ASC requirement”), is unconstitutional “as applied to all women seeking a previability
abortion.”18
11 Tex. Health & Safety Code Ann.§ 171.0031(a)(1).
12 Tex. Health & Safety Code Ann.§ 171.0031(b).
13 See Whole Woman’s Health v. Cole, 790 F.3d 563, 576 (5th Cir. 2015).
14 See Cole, 790 F.3d at 579 (“[T]he Plaintiffs offered testimony that abortion physicians were being denied admitting
privileges, not because of their level of competence, but for various other reasons, including: outright denial of
admitting privileges with no explanation other than that it ‘was not based on clinical competence,’ and having not
completed a medical residency even though the bylaws of the hospital did not require such.”)
15 See Planned Parenthood of Greater Texas Surgical Health Services v. Abbott, 951 F.Supp.2d 891 (W.D. Tex. 2013).
16 748 F.3d 583 (5th Cir. 2014).
17 Id. at 598.
18 Lakey, 46 F.Supp.3d at 677.
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On appeal, the Fifth Circuit considered both facial and as-applied challenges to the admitting
privileges requirement. In Whole Woman’s Health v. Cole, the appeals court found that the
provider’s facial challenge fails on both procedural grounds and on the merits. The court
maintained that the provider’s facial claim violates the principle of res judicata, and should have
been precluded by its decision in Abbott II.19 The court noted: “By granting a broad injunction
against the admitting privileges requirement ... the district court resurrected the facial challenge
put to rest in Abbott II.”
Even if res judicata did not bar the provider’s facial challenge, the Fifth Circuit found that it
would fail on the merits. In considering the merits of the facial challenge, the Fifth Circuit
disputed the lower court’s application of the undue burden standard to the admitting privileges
requirement. After weighing the burden and medical efficacy of the requirement, the district court
concluded that the requirement did not further the state’s interests in maternal health and
increased quality of care. This determination informed the district court’s finding that the
requirement imposed an undue burden.
The Fifth Circuit contended, however, that the weighing of burden and efficacy was
inappropriate. Citing its decision in Abbott II, the Fifth Circuit observed that courts should not
second guess legislative fact-finding or relitigate the facts that led to a law’s enactment.20 Rather,
the Fifth Circuit insisted that a law should be sustained if it is rationally related to a legitimate
interest. Here, the Fifth Circuit maintained that the district court “erred by substituting its own
judgment for that of the legislature ... this time in the name of the undue burden inquiry.”21
Although the Fifth Circuit rejected the facial challenge to the admitting privileges requirement, it
affirmed an injunction of the requirement as applied to the abortion facility in McAllen. This
facility is the sole abortion provider in the Rio Grande Valley. The court discussed the 235-mile
distance some women in the Rio Grande Valley would have to travel to obtain an abortion, and
indicated that the state would be enjoined from enforcing the requirement until another facility
opens at a location that is closer than those located in San Antonio. Acknowledging its discussion
of Casey and travel distances in Abbott II, the Fifth Circuit observed: “[I]n the specific context of
this as-applied challenge as to the McAllen facility, the 235-mile distance presented, combined
with the district court’s findings, are sufficient to show that [the requirement] has the ‘effect of
placing a substantial obstacle in the path of a woman seeking an abortion.’”22
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. 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.23 The Fifth Circuit explained that invalidating the Mississippi requirement would have
19 See Cole, 790 F.3d at 581 (“Res judicata bars any claims for which: (1) the parties are identical to or in privity with
the parties in a previous lawsuit; (2) the previous lawsuit has concluded with a final judgment on the merits; (3) the
final judgment was rendered by a court of competent jurisdiction; and (4) the same claim or cause of action was
involved in both lawsuits.”).
20 Cole, 790 F.3d at 587.
21 Id.
22 Cole, 790 F.3d at 594.
23 760 F.3d 448 (5th Cir. 2014).
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led to the closure of the last abortion facility in the state.24 An invalidation of the Texas
requirement would not have the same effect.
Petition for Supreme Court Review
In its petition for review of the Fifth Circuit’s decision, Whole Woman’s Health maintains 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.25 In
applying the undue burden standard, both appellate courts conducted this analysis. In Planned
Parenthood 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.26 The court further noted: “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.’”27
The Seventh Circuit articulated a similar approach to applying the undue burden standard in
Planned Parenthood v. Van Hollen.28 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.29
In light of the approaches taken by the Ninth and Seventh Circuits, Whole Woman’s Health
argues that the Fifth’s Circuit’s interpretation of the undue burden standard is erroneous, and
contends that review by the Supreme Court is needed to resolve this split in authority.
Whole Woman’s Health has also asked the Court to review 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 argues 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. In Cole, the
Fifth Circuit maintained that the facial challenge to the ASC requirement was precluded by its
decision in Abbott II. Whole Woman’s Health did not challenge the requirement in Abbott II
because regulations to implement the requirement had not yet gone into effect. Nevertheless, the
Fifth Circuit found that the challenge should have been brought because that case involved the
same parties and legal standards.
Whether the Court agrees to review Cole is not clear. Given the possibility of more than 75% of
Texas’s abortion facilities closing if the admitting privileges and ASC requirements are enforced,
24 Cole, 790 F.3d at 596-97.
25 Petition for a Writ of Certiorari, Whole Woman’s Health v. Cole (U.S. filed Sept. 2, 2015), available at
http://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/2015-09-02-Cert-Petition-WWH-v-
Cole.pdf.
26 753 F.3d 905, 912 (9th Cir. 2014).
27 Id.
28 738 F.3d 786 (7th Cir. 2013).
29 Id. at 798.
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the case has proven to be of great concern to those who support a woman’s right to choose.30 The
different approaches taken by the Fifth, Seventh, and Ninth Circuits in applying the undue burden
standard also suggest that clarification by the Court would be helpful for lower courts and state
legislatures. With reports of as many as 51 new abortion regulations being enacted in 2015, a
clearer understanding of how to apply the undue burden standard would help to determine
whether these regulations should be upheld.31
Author Contact Information
Jon O. Shimabukuro
Legislative Attorney
jshimabukuro@crs.loc.gov, 7-7990
30 Petition for a Writ of Certiorari, supra note 25 at 1-2.
31 See, e.g., Guttmacher Inst., Laws Affecting Reproductive Health and Rights: State Trends at Midyear, 2015 (July 1,
2015), http://www.guttmacher.org/media/inthenews/2015/07/01/.
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