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.