Whole Women's Health v. Hellerstedt: The Future of a Woman's Private Choice Lies with Eight Justices

This year, the Supreme Court will decide in Whole Women’s Health v. Hellerstedt whether the “undue burden” standard requires a court to consider the extent to which an abortion law actually serves the government’s interest of promoting health. Specifically at issue in this case are a series of Texas regulations that could drastically limit the number of abortion clinics allowed to operate within the state.

In Planned Parenthood v. Casey, the Supreme Court held that the choice to have an abortion was protected under the constitutional right to privacy. However, the Court allowed the states to regulate abortions as long as the regulations satisfied the “undue burden” standard, meaning that the regulation’s purpose or effect cannot be “to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.” In Casey, the Court did not explain how other courts should determine whether a law’s actual “purpose” was to promote public health or if it imposed a “substantial burden” on a woman’s choice to have an abortion.

Shortly after Casey, the Supreme Court decided Gonzales v. Carhart, which held that states are free to forbid certain abortion procedures that have “medical and scientific uncertainty.” This holding allows state legislators to impose abortion restrictions if they can demonstrate (usually through testimony) that the restrictions are regulating areas that contain “medical uncertainty.” 

With Casey and Gonzales in mind, Texas legislators carefully crafted HB2. Most importantly, HB2 imposes “hospital admitting privileges” and certain architectural requirements for Texas abortion clinics. The “hospital admitting privileges” aspect requires that any doctor performing abortions have the ability to admit patients to hospitals located within 30 miles of the abortion clinic for emergency services. The architectural requirements force abortion clinics to have eight-foot wide hallways and three-foot wide doorways.  These regulations will effectively shut down over three-fourths of Texas’ abortion clinics. While Texas legislators claim that the regulations’ purpose is to protect women’s health, opponents allege that they do not actually serve that purpose.  Eventually, several health care providers challenged the constitutionality of HB2.

Though the providers initially saw success in district court, the United States Fifth Circuit Court of Appeals ultimately sided with the Texas legislatures, finding that HB2 was a proper exercise of legislative authority. On November 13, 2015, the Supreme Court granted the providers’ timely petition for a writ of certiorari. With an opinion still pending from the 8-justice panel, the main issue for the Court to decide is whether courts, under an “undue burden” analysis, should consider the degree that abortion regulations actually serve their alleged purposes. The decision will have large implications for abortion regulations across the country, especially for HB2.

If the Supreme Court affirms the Fifth Circuit’s holding, state legislatures will be given significant deference regarding their alleged purpose for abortion regulations.  The Fifth Circuit relied on Gonzales, and ultimately granted deference to Texas legislatures because the regulations were enacted in areas where “medical uncertainty” existed. Texas was able to provide testimony indicating that the HB2 provides patient safety in areas where there was not uniform agreement amongst the medical community.

Conversely, if the Supreme Court decides that courts must consider the degree that the regulation actually serves its alleged purpose, it would be difficult to recognize HB2 as a promotion of women’s health. First, the bill’s architectural requirements attempt to bring abortion clinics in line with Texas’ “ambulatory surgical center” regulations even though many Texas abortion clinics offer no surgical procedures.  Second, the “hospital admitting privileges” requirement has little connection to patient care, and is detrimental to the operation of many abortion clinics. When a patient has complications from an abortion performed at a nearby clinic, a hospital will still treat her if she arrives in its emergency room. The hospital’s treating physician will also consult the doctor that performed the abortion regardless of whether that doctor has admitting privileges. However, requiring abortion clinics to obtain admitting privileges will shut down a majority of clinics since many hospitals will not grant such privileges unless a doctor admits a certain number of patients to the hospital per year.

If the Court finds that Texas’ regulations are an undue burden on women seeking abortions, it would effectively render them unconstitutional. However, if the Court agrees that HB2 is within Texas’ legislative authority due to the “medical uncertainty” of HB2’s particular requirements, states would gain substantial deference in their purpose for enacting abortion regulations. In short, the Supreme Court’s decision will forever alter the constitutionality of a woman’s private choice to have an abortion.


Tobin Klusty is a second year law student at DePaul University College of Law. Tobin is a fellow of the Jaharis Health Law Institute at DePaul; a case brief staff member on the Institute’s online publication, E-Pulse; and a staff writer on the DePaul Health Care Law Journal. His research focuses on the intersection of health care and civil rights. Tobin will be competing as a member of the DePaul National Trial Team in Spring 2016.​​​​