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
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.