Whole Woman’s Health v. Hellerstedt is a beat down of Texas’ anti-abortion law HB 2. Justice Stephen Breyer’s majority opinion piles facts upon evidence upon statistics to demolish Texas’ supposed justification for the law. At one point, Breyer even damns the law with words uttered by Texas’ own attorney. By the end of the opinion, it is surprising that Breyer did not finish with the two words “HULK SMASH!”
Even more significantly, Whole Woman’s Health leaves the right to an abortion on much stronger footing than it stood on before this decision was handed down. It’s difficult to exaggerate just how awesomely anti-abortion advocates erred in urging Texas to pass HB 2 in the first place. This law was supposed to provide those advocates with a vehicle to drain what life remains in Roe v. Wade. Instead, reproductive freedom is stronger today than it has been at any point in nearly a decade.
HB 2, and the litigation strategy used to defend it, took advantage of an apparent contradiction in the Court’s abortion jurisprudence. Roe itself held that the “State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient.” More recently, in 2007’s Gonzales v. Carhart, a 5–4 Court held that lawmakers enjoy “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” The question in Whole Woman’s Health was whether a state could enact a sham health law that did little to advance women’s health and a great deal to shut down abortion clinics, and then claim that enough “medical and scientific uncertainty” exists to permit such a law to stand.
Justice Breyer answers this question with a firm, unambigious “no.” Quoting from the Court’s 1992 opinion in Planned Parenthood v. Casey, Breyer writes that “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right,” and therefore are unconstitutional.
In response to a federal appeals court, which bought the argument that “medical uncertainty underlying a statute is for resolution by legislatures, not the courts,” Breyer is curt and dismissive. “The Court of Appeals’ articulation of the relevant standard is incorrect,” he writes, adding that Casey “requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.”
On the surface, Breyer’s citations to Casey suggest that he is doing nothing more than applying clearly established law — and this certainly would have been the case prior to Carhart. But Carhart genuinely did raise uncertainty about how much deference the Supreme Court was prepared to give lawmakers who wish to shut down abortion clinics. And it appeared to open the door to laws like HB 2. Breyer’s opinion slams that door shut, bolts it, places a bar over it, and pushes a sofa behind the door.
Some of the the most Roe-undermining language ever to appear in a Supreme Court opinion has now been mostly neutered.
Having determined that “unnecessary health regulations” designed to erect significant barriers before women seeking abortions are not allowed, Breyer then begins the “HULK SMASH!” portion of his opinion — comprehensively dismantling the case that HB 2 is anything other than an undue burden on the right to abortion with a barrage of facts and citations to the record.
The two provisions before the Court require abortion providers to obtain admitting privileges in a nearby hospital, and they require clinics to comply with expensive regulations normally imposed on “ambulatory surgical centers.” The first provision, Breyer explains, required half of Texas’ 40 abortion clinics to close. The second would reduce the number of open clinics down to 7 or 8.
This law was supposed to provide those advocates with a vehicle to drain what life remains in Roe v. Wade. Instead, reproductive freedom is stronger today than it has been at any point in nearly a decade.
As Breyer notes, the admitting privileges requirement is a solution in search of a problem. As the trial court determined in this case, “[t]he great weight of evidence demonstrates that, before the act’s passage, abortion in Texas was extremely safe with particularly low rates of serious complications and virtually no deaths occurring on account of the procedure.” Accordingly, “there was no significant health-related problem that the new law helped to cure.”
Indeed, when Texas’ solicitor general was “directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.”
A significant reason why the admitting privileges requirement imposes such a heavy burden on abortion providers is that many hospitals require doctors to actually admit a certain number of patients in order to maintain those privileges. But abortion doctors rarely have a reason to do so. One clinic, for example, performed over 17,000 abortions over a decade, and “not a single one of those patients had to be transferred to a hospital for emergency treatment, much less admitted to the hospital.” Thus, Breyer writes, “doctors would be unable to maintain admitting privileges or obtain those privileges for the future, because the fact that abortions are so safe meant that providers were unlikely to have any patients to admit.”
An Historic Attempt To Kill Roe v. Wade May Backfire Spectacularly On The Anti-Choice RightJustice by CREDIT: Doug Mills/The New York Times via AP, Pool It was supposed to be an epic battle over the fate of Roe…thinkprogress.orgThe ambulatory surgical center provision runs into similar problems — imposing expensive requirements on abortion clinics that simply make no medical sense. The cost of complying with these requirements ranges “from $1 million per facility (for facilities with adequate space) to $3 million per facility (where additional land must be purchased).” And they include a long list of regulations that serve no purpose in an abortion clinic.
To give one example, HB 2 requires clinics to comply with strict rules governing sterile surgical facilities that are entirely appropriate means of reducing “infection where doctors conduct procedures that penetrate the skin.” But abortions “typically involve either the administration of medicines or procedures performed through the natural opening of the birth canal, which is itself not sterile.”
Meanwhile, the law imposes much stricter requirements on abortion clinics than it imposes on other facilities that perform far more dangerous procedures.
The total number of deaths in Texas from abortions was five in the period from 2001 to 2012, or about one every two years (that is to say, one out of about 120,000 to 144,000 abortions). Nationwide, childbirth is 14 times more likely than abortion to result in death, but Texas law allows a midwife to oversee childbirth in the patient’s own home. Colonoscopy, a procedure that typically takes place outside a hospital (or surgical center) setting, has a mortality rate 10 times higher than an abortion. Medical treatment after an incomplete miscarriage often involves a procedure identical to that involved in a nonmedical abortion, but it often takes place outside a hospital or surgical center.
Combined, “these facts indicate that the surgical-center provision imposes ‘a requirement that simply is not based on differences’ between abortion and other surgical procedures ‘that are reasonably related to’ preserving women’s health, the asserted ‘purpos[e] of the Act in which it is found.’”
So this is a big loss for opponents of the right to choose and an enormous strategic blunder by some of the most sophisticated thinkers in the anti-abortion movement. HB 2 was the brainchild of Americans United for Life, a “legislation mill” that drafts anti-abortion bills that can be enacted by sympathetic state lawmakers. The group brags its goal is to overrule Roe “through deliberate, legal strategies that accumulate victories, build momentum, and restore a culture of life.”
AUL is a formidable opponent of abortion rights, but their most high-profile effort to strike at Roe has now ended in disaster for them. In pushing the limits of Carhart, they have destroyed one of the most powerful weapons they had in the war on abortion.