By Desiree Santos (SCR ‘19)
Abortion is perhaps the most divisive issue within the United States. Its deep roots in personal ideology and religious morality make it a fighting cause for many. The 2016 Supreme Court case Whole Woman’s Health v. Hellerstedt, the most significant US abortion case in over twenty years, pushed the issue of abortion even further to the forefront of the nation’s political battleground. In this case, the petitioner, Whole Woman’s Health (a coalition consisting of Planned Parenthood and other Texas abortion providers) sued the respondent, John Hellerstedt, the Commissioner of the Texas Department of State Health Services. The constitutional issue involves the passage of Texas State Legislature’s House Bill 2 (commonly known as “HB2”), which would require that all abortion facilities have an on-staff doctor who retains admitting privileges at a local hospital and that all abortion facilities abide by the same regulations as Ambulatory Surgical Centers (ASCs). While this bill was championed by some as a giant leap forward in improving health and safety for Texas women, some alternately dubbed it as a conniving tactic to reduce abortion access, striking a blow to both women’s health and reproductive freedom. The fundamental issue in this constitutional argument was whether or not HB2’s restrictions amassed to create an “undue burden” to women seeking to uphold their right to terminate a pregnancy.
In its 5-3 decision, the Supreme Court found in June 2016 that seemingly arbitrary abortion restrictions that have no clear, positive impact on women’s health are unconstitutional. This decision was widely celebrated by pro-choice advocates, touting Whole Woman’s Health as the Roe v. Wade (1973) of this generation. However, such a comparison is not necessarily all positive. Though Roe certainly was the landmark case in establishing a woman’s right to terminate a pregnancy, it has still allowed for countless legislative restrictions that have effectively minimized that right. Roe is important, but the struggle for the right it supposedly established still continues forty-three years past its ruling. Whole Woman’s Health is similar. Though it expands women’s freedom to receive abortions without excessive State interference, the battle for female bodily autonomy is likely not over, as lawmakers still have room to pass laws severely restricting females’ right to seek an abortion.
The bill in question, Texas State Legislature’s House Bill 2, was not proposed at random – rather, it was drafted in response to the Kermit Gosnell catastrophe which horrified the nation in 2011. In this scandal, the FBI discovered that Gosnell, a Pennsylvania doctor not qualified to perform abortions, had been illegally running a clinic for over thirty years. This clinic was in noncompliance with any and all abortion regulations in Pennsylvania at the time; Gosnell used corroded suction tubes to perform abortions, covered sedated patients in blood-stained blankets, allowed cats to freely roam and defecate throughout the clinic, and used scissors to sever the spinal cords of newborns. He displayed a complete disregard for the safety of the women in his clinic – he hired unqualified staff, re-used unsanitary equipment leading to patients contracting STDs, performed abortions on women nearly seven months pregnant, and allowed one patient to die under his care because he refused to send her to a hospital. Many believe that the reason why Gosnell was able to perform such atrocities for over three decades is because Pennsylvania lacked strict abortion facility protocols. The state legislators of Texas attempted to use their power to prevent such an incident from ever happening again, which prompted them to draft HB2 “in the wake of the Kermit Gosnell scandal … to provide abortion patients with the ‘highest standard of health care.’” They listened to the advice of the Gosnell Grand Jury Report and the National Abortion Federation’s guidelines, which advised that “Abortion clinics … should be explicitly regulated as ambulatory surgical facilities” and “abortion patients should make sure that their doctor ‘in the case of emergency’ can ‘admit patients to a nearby hospital no more than 20 miles away.’” Such abortion facility restrictions, if put into place, would be some of the most prohibitive in the entire country.
By these standards, the Texas Legislature was lenient in drafting the regulations. For the restriction on admitting privileges, rather than requiring that doctors have such privileges at a hospital no more than 20 miles away (as the National Abortion Federation suggested), the bill read that “Abortion practitioners must ‘have active admitting privileges at a hospital that is … located not further than 30 miles from the location at which the abortion is performed.’” Likewise, when requiring that abortion facilities conform to ambulatory surgical center standards, the bill required that the facilities only meet the lowest tier of regulations for ASCs. This includes:
(1) operating requirements, which cover topics such as staffing, nursing, training, patient safety, and sterilization procedures, (2) fire prevention and general safety requirements, such as having a fire-extinguishing system and evacuation plan and properly inflammable materials), and (3) physical-plant requirements regulating, for example, room size, floor coverings, and soap dispensers.
HB2 also allowed for a grace period, allowing for abortion facilities to have extra time after the bill’s passage in order to conform to the requirements. Clinics had 100 days to adhere to the admitting privileges requirement and thirteen months to perform any necessary renovations to be in compliance with the ASC requirement. Although the bill was completely passed by the Texas State Legislature, the ASC grace period allowed for the bill to be argued in court before that restriction fully came into effect. Therefore, HB2 was only partially implemented before it was struck down by the Supreme Court.
Whole Woman’s Health argued that the ASC and admitting privilege requirements would have placed an undue burden on Texas women because these requirements were expected to lead to widespread closures of abortion facilities, which would have severely restricted abortion access throughout the state. The petitioner referenced a map provided to the Supreme Court to show that prior to HB2, forty-one clinics and ASCs in the state of Texas were licensed to perform abortions. If all the regulations in HB2 were enacted, all the clinics would have been shut down, leaving nine ASCs as the only abortion providers in Texas. Their brief stated that “the resulting shortage of such facilities means that women will have long waits to get an appointment with an abortion provider, [and] … many women will have to travel far from home to reach an abortion facility.” Requiring women to travel over 100 miles to reach an abortion facility is not merely a temporal burden – it is also costly and adds even more stress to an already invasive procedure. The petitioner claimed that the woman may be pressed to find a car, have enough money for gas, be able to take time off work, or find someone willing to babysit any children she may already have. These various burdens caused by widespread closures would have likely led many women to either wait longer to have their abortion (which increases the risks) or seek out illegal methods of abortion. The petitioners believed that these negative effects outweigh any benefits posed by the increased abortion regulations, thus creating burdens “so grossly disproportionate to any possible health benefit that they are plainly ‘undue.’”
The petitioner stated that the true intention of HB2 was to close down Texas’ abortion clinics, as it had already done through the implementation of the admitting privileges requirement. They cited that “after the admitting privileges requirement took effect on October 31, 2013, many abortion facilities throughout Texas were forced to close.” Additionally, if the entirety of HB2 was adopted as is, it would have shut down every single abortion clinic in Texas. The evidence that the petitioner offered that HB2 was the sole factor to blame for clinic closures is the correlation between the date of passage of the bill and the period of time when the majority of the clinics closed. Numerous clinics closed in anticipation of the admitting privileges requirement, and numerous more closed on the exact day that this requirement came into effect. Given that the respondent, the Commissioner of the Texas Department of State Health Services, offered no other reasonable explanation for why these closures occurred en masse, the petitioner’s claim appeared valid. The petitioner used the effect of HB2’s partial implementation to suggest its true purpose: to eradicate Texas’ abortion clinics, making it exceedingly difficult for women to receive abortions, thus reducing the rate of these procedures performed. The 1993 case Church of Lukumi Babalu Aye, Inc. v. City of Hialeah (1993) established that “the effect of a law in its real operation is strong evidence of its object.” Within the scope of Whole Woman’s Health v. Hellerstedt, the most prominent effect of HB2 was that abortion clinics closed down. This, along with the negative impact on women’s health that results from decreased access to abortion clinics, solidified the petitioner’s claim that HB2 was drafted with an impermissible purpose that creates an undue burden for women seeking abortions.
The respondent took a completely different approach from the petitioner, using hyper-technical legal interpretations of precedent-setting cases and demanding that the petitioner provide credible, linked facts to adequately prove their claims of an undue burden posed by HB2. From the outset, the respondent attempted to dispel the petitioner’s allegations that HB2 was written and passed with an ulterior motive. The very first line of their brief to the Supreme Court reads: “Like other States, Texas responded to the Kermit Gosnell scandal by enacting laws to improve the standard of care for abortion patients.” To structure their argument, the respondent posed three questions slightly altered from the petitioner’s brief. The first challenged whether or not the Court should overturn the cases Planned Parenthood v. Casey (1992) and Gonzales v. Carhart (2007) by allowing courts to “override legislative determinations about disputed medical evidence, rather than adhering to the doctrine that abortion regulation is valid if it has a rational basis and does not impose a substantial obstacle to abortion access.” The second question asked if HB2 is unconstitutional in its totality or as-applied to a single El Paso abortion clinic. The final question the respondent presented is whether or not Whole Woman’s Health should be blocked from arguing this case due to the fact that selective components of HB2 had already been found constitutional by a lower court in the past.
The respondent asserted that the petitioner’s brief floundered in attempting to prove that HB2 was written with unconstitutional purpose, as the clearly stated effect and purpose of the bill was always the promotion of women’s health, a valid government interest. The petitioner’s first argument of HB2’s unconstitutional purpose was that “no purpose other than creating a substantial obstacle could exist because the challenged provisions ‘utterly fail’ to advance any beneficial end.” The respondent urged the Court to believe that this was utterly untrue, as “the petitioner ignores evidence admitted at trial that admitting privileges and ASC requirements would increase patient health and safety and promote physician professionalism.” Specific to the admitting privileges requirement, the respondent cited valid reasons as to how it will promote women’s health, highlighting that “without admitting privileges, other physicians are left to take care of an abortion provider’s most serious complications.” In regards to the ASC standards, the respondent recalled that the petitioner never questioned the constitutionality of the preexisting Texas requirement that abortions performed after fifteen weeks must be done in an ASC-compliant facility. The respondent even found that prior case law was on their side, as established in their reference to Stimopoulos v. Virginia (1983), which held that – even under the strict scrutiny framework from Roe – “[The] ASC requirement was a valid means of ‘furthering the State’s compelling interest in ‘protecting the woman’s own health and safety.’’” The petitioner’s second attempt to prove unconstitutional purpose was rooted in the belief that HB2’s undisputed and predictable effect is to close abortion clinics. The respondent claimed that this is a false assumption and that if the State’s aim was to close down clinics, then they wouldn’t have provided a 13-month grace period for the operating clinics to conform to ASC standards before the requirement was to come into effect. Hellerstedt argued that it was also illogical and improper for the petitioner to presume that effect equates to intent, as Mazurek v. Armstrong (1997) established that “In all events, this court ‘does not assume unconstitutional legislative intent even when states produce harmful results … an awareness of the consequences is not sufficient to demonstrate unconstitutional purpose.” The final prong of the petitioner’s attack of unconstitutional purpose was the fact that Texas was attempting to regulate abortion differently from other medical procedures. The claim that trying to specifically regulate abortion is unconstitutional is pure conjecture, as “the constitution does not require a state to reform all of its medical regulations or none at all.” The respondent urged that singling out abortion for legislation without any unique aspects is indeed permissible, as abortion was a topic of particular public attention after the Gosnell investigation. In essence, the respondent heavily cited precedent and the presumptuous claims of the petitioner in order to argue that there is no evidence nor legal basis proving that HB2 had an unconstitutional purpose.
However, despite the respondent’s arguments, the Supreme Court struck down Texas State Legislature’s HB2. In Justice Breyer’s majority opinion, he notes the Court being unmoved by HB2’s motive to protect women’s health, as the ASC and admitting privilege requirements only tangentially related to the abortion procedure. The opinion cites that the possibility of having a mere seven or eight abortion facilities to serve the entire state of Texas under HB2’s full enactment would pose an undue burden in and of itself. Since abortions are already considered one of the safest medical procedures, additional facility requirements that would ultimately restrict access are unacceptable.
Though in Whole Woman’s Health v. Hellerstedt the Supreme Court reveals that it will not buy the bluff of women’s health activists wanting to restrict access to abortion, it upholds the “undue burden” standard, which remains ambiguous. The totality of circumstances that would equate to an “undue burden” certainly varies from person to person, especially from different ends of the political spectrum. The Court’s ruling certainly provides decisive clarity to the specific constitutional issues of Texas’ HB2, but it still allows leeway for lawmakers and voters to pass legislation reducing the constitutional right to terminate a pregnancy. Despite the Court’s ruling, abortion laws are still permitted to create burdens on a woman’s right to terminate a pregnancy, as long as these burdens are justified and not excessive; this upholds a vague legal standard open to individuals’ widely varying interpretations. As with Roe v. Wade, the symbolic legal significance of the Whole Woman’s Health v. Hellerstedt decision is huge, but the future of women’s constitutional freedom remains uncertain.
 “Whole Woman’s Health v. Hellerstedt.” SCOTUSblog. Supreme Court of the United States. 27 June 2016. Web. 06 May 2016.
 Kliff, Sarah. “The Gosnell Case: Here’s What You Need to Know.” Washington Post. The Washington Post, n.d. Web. 06 May 2016.
 Whole Woman’s Health, et al. Brief for the Petitioners. 579 U.S. Supreme Court. 2015. 1-2. Print.
 See 3.
 Whole Woman’s Health, et al. Brief for the Petitioners. 579 U.S. Supreme Court. 2015. 3. Print.
 See 5.
 Whole Woman’s Health, et al. Brief for the Petitioners. 579 U.S. Supreme Court. 2015. 32. Print.
 See 7.
 Whole Woman’s Health, et al. Brief for the Petitioners. 579 U.S. Supreme Court. 2015. 11. Print.
 Whole Woman’s Health, et al. Brief for the Petitioners. 579 U.S. Supreme Court. 2015. 40-41. Print.
 John Hellerstedt, M.D., Commissioner of the Texas Department of State Health Services, et al. Brief for the Respondents. 579 U.S. Supreme Court. 2015. i. Print.
 See 11.
 John Hellerstedt, M.D., Commissioner of the Texas Department of State Health Services, et al. Brief for the Respondents. 579 U.S. Supreme Court. 2015. 40. Print.
 See 13.
 John Hellerstedt, M.D., Commissioner of the Texas Department of State Health Services, et al. Brief for the Respondents. 579 U.S. Supreme Court. 2015. 34. Print.
 John Hellerstedt, M.D., Commissioner of the Texas Department of State Health Services, et al. Brief for the Respondents. 579 U.S. Supreme Court. 2015. 37. Print.
 John Hellerstedt, M.D., Commissioner of the Texas Department of State Health Services, et al. Brief for the Respondents. 579 U.S. Supreme Court. 2015. 42. Print.
John Hellerstedt, M.D., Commissioner of the Texas Department of State Health Services, et al. Brief for the Respondents. 579 U.S. Supreme Court. 2015. 53. Print.
 Whole Woman’s Health et al. v. Hellerstedt, Commissionner, Texas Department of State Health Services, et al. 579 U.S. Supreme Court. 2016. Print.