Whole Woman’s Health v. Hellerstedt: What Do Oral Arguments Suggest?

On March 2, 2016, the Supreme Court heard oral arguments on a pivotal case regarding Texas’ abortion regulations: Whole Woman’s Health v. Hellerstedt. Regardless of the outcome, the case will have a large effect on women’s rights in United States.

The controversial Texas regulations require abortion clinics to gain “hospital admitting [a1] privileges” and satisfy the architectural standards for “ambulatory surgical centers.” The hospital admitting privileges require physicians performing abortions to have the ability to admit patients to hospitals within 30 miles for emergency services; while the architectural requirements compel abortion clinics to have eight-foot wide hallways, three-foot wide doorways, and several other ambulatory surgical center features. There are two arguments at the head of this debate. Texas’ solicitor general, Scott Keller, argues that the regulations protect women’s health. However, the clinics argue that the regulations’ purpose is to limit access to abortion services.

For the Supreme Court, the ultimate issue is whether the Texas’ regulations satisfy Planned Parenthood v. Casey’s undue burden standard. The undue burden standard allows states to regulate a woman’s private choice to have an abortion as long as the regulation’s purpose is not “to place substantial obstacles in the path of [that choice] before the fetus attains viability,” or can survive outside of the womb. The Texas regulations would be deemed unconstitutional if the Supreme Court finds that they do not satisfy the standard. However, if the Texas regulations are upheld, over three-fourths of the state’s abortion clinics will close as a result.  Unfortunately, it was not entirely clear during oral arguments what direction the Supreme Court was heading.

Unsurprisingly, the Supreme Court’s four liberal justices strongly indicated their belief that the Texas regulations serve to limit access to abortion rather than protect women’s health. For example, Justice Breyer questioned why colonoscopies are not regulated to the same extent as abortions even though colonoscopies have twenty-eight times more risk of complication. Conversely, the conservative leaning justices displayed acceptance towards the regulations. Justice Alito even suggested that there was “little evidence” that the regulations have directly caused any abortion clinic to close. It seems that in the end Justice Kennedy will be a crucial swing-vote within the eight-justice Supreme Court.

Even with the death of Anton Scalia, Justice Kennedy’s vote will significantly affect women’s rights. If a tie results because Kennedy sides with the Court’s three conservative justices, the Texas regulations would stand and a majority the state’s abortion clinics would remain closed. Consequentially, over 900,000 Texan women would be over 150 miles from the nearest clinic – effectively limiting access to a constitutionally protected choice. But there are a few things to consider. First, Kennedy formed the undue burden standard in Casey. In oral arguments, Kennedy adamantly applied the standard in his questions during oral arguments. Many abortion rights groups believe his line of questioning indicates his disposition to declare the regulations an undue burden. Secondly, Kennedy believes the undue burden test should be weighed against the state’s interest. The weaker Texas’ interest, the greater the burden the regulations impose. Ultimately, the decision may hinge on whether Texas’ alleged interest satisfies a degree of legitimacy. 

Regardless of whether the Court strikes down the Texas regulations or results in a tie, the eight-justice Supreme Court decision will alter women’s rights in the United States. Other states, like Louisiana, will be free to promulgate similar regulations if the Texas laws are upheld. But if the regulations are declared an undue burden, firmer limits will be placed on states’ attempting to restrict women’s private choice to have an abortion. For now, we will have to wait until June to discover the ultimate fate of the right to 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.