A Woman’s Health and Safety, or an Undue Burden?

On March 2, the Supreme Court of the United States heard oral arguments in the most significant case about abortion in decades: Whole Woman’s Health v. Hellerstedt. The outcome of this case has the potential to affect millions of women and revise the constitutional principles governing abortion rights.

Taking a look back at legislative history, in 1992 the Supreme Court affirmed the landmark abortion-related case, Roe v. Wade (1973), in Planned Parenthood v. Casey. The Court in Casey struck down abortion restrictions that imposed an “undue burden” on women. Restrictions included “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.” Since the Casey decision, there have been many challenges to laws testing just what “undue burden” means.

At issue now in the Whole Woman’s Health case is a controversial Texas law, HB-2, which will dramatically change the way Texas women can access reproductive health care. The law, authored by pro-life activist Jodie Laubenberg (R-TX), requires abortion care providers to have admitting privileges at a hospital within 30 miles, and requires that abortion clinics comply with standards for ambulatory surgical centers (ASCs). Many clinics rely on physicians who are unable to obtain privileges at local hospitals for reasons unassociated with the quality of the doctor’s care. For example, some clinics are surrounded by religiously affiliated hospitals that deny abortion providers admitting privileges based on pro-life beliefs. This law was said to protect women’s health and safety, though some, such as the American Medical Association and the American College of Obstetricians and Gynecologists, find that the regulations put in place are medically unnecessary and burdensome. For example, the ASC requirement regarding the size of a janitor’s closet does not directly affect women’s health and safety. This law, known as a “TRAP” (Targeted Regulation of Abortion Providers) law, is designed to shut down more than 75 percent of all women’s health clinics that provide abortion services in the state. Additionally, it also impacts women seeking abortion care through higher costs, lengthier delays, and extra steps, such as traveling hundreds of miles, for women seeking abortion care. 

The petitioners in Whole Woman’s Health, a group of abortion providers represented by the Center for Reproductive Rights, filed a lawsuit in 2014 challenging the requirements for admitting privileges and the ambulatory surgical center standards. They said that the regulatory burdens imposed by these laws will dramatically reduce the number and geographic distribution of medical facilities in Texas where women would be able to access a safe abortion. They argued that this creates an undue burden on women’s right to access, which violates the 14th Amendment to the U.S. Constitution.

The federal district court granted declaratory and injunctive relief of the measures, finding both requirements in violation of the 14th Amendment. The U.S. Court of Appeals for the Fifth Circuit, however, partially reversed the injunctions because the plaintiffs failed to show that they placed a substantial burden in the path of a woman seeking an abortion.

Since Justice Scalia’s untimely death, all eyes are on Justice Kennedy, who some say would likely be the possible swing vote in this case. Should the Court rule 4-4, the Fifth’s Circuit decision will remain in place. This would mean that the Texas law will stay in effect and for many women, their decision to exercise their constitutional right to end a pregnancy will be severely hindered.

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