Policy Updates

Everything You Need to Know about WWH v. Hellerstedt in Five Minutes

Sep 13, 2016

Last Monday, people across the country celebrated (or lamented), as pictures of the most honorable Justice Notorious RBG went viral and the Supreme Court of the United States (SCOTUS) made a historic ruling.

On June 27th, SCOTUS struck down two provisions in Texas H.B. 2 law, one requiring physicians to have admitting privileges at hospitals, and the other requiring abortion facilities to have the same standards as ambulatory surgical-centers, because they created an “undue burden” on women.

And to save y’all from the burden of reading the 107 page document consisting of the major opinion, a concurrence, and a few dissents, here is a quick summary of Whole Woman’s Health v. Hellerstedt, a case that has quickly become one of the biggest wins for the pro-choice movement in decades.

What is an Undue burden?

To understand the significance of the Whole Woman’s Health v. Hellerstedtcase, we must take a look at an older case, Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) or Casey for short. In Casey,the plurality of the Court created a standard for balancing a woman’s individual right to privacy and the State’s interest in protecting the potential life of a fetusafter viability.  If the “purpose or effect” of a provision “is to place a substantial obstacle in the path of a woman seeking an abortion” then this provision imposes an “undue burden” on the woman’s rights.

Likewise, the plurality added that “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle” also cause an “undue burden” on a woman’s right.  In both instances, courts are required to “consider the burdens a law imposes on abortion access together with the benefits those laws confer.”

Additionally, SCOTUS rejected an idea presented that “medical uncertainty underlying a statute is for resolution by legislatures, not the courts.” TheCourt retains an independent constitutional duty to review factual findings where constitutional rights are at stake,” and should consider the evidence in the record.
What the evidence showed about admitting privileges…or a better phrasing would be what the evidence couldn’t show.

The evidence in the record, as related to the admitting privileges, had shown that “abortion, as regulated by the State before the enactment of House Bill 2, has been shown to be much safer, in terms of minor and serious complications, than many common medical procedures not subject to such intense regulation and scrutiny.” Additionally, the evidence in the record indicated that a “substantial obstacle” was placed in the path of a woman’s choice, as there were many clinics unable to find physicians with admitting privileges who were willing to provide abortions. This is due to issues such as community size or hostilities towards the practice.

Even if a physician was able to overcome those difficulties, a physician may still encounter roadblocks as many admitting privileges required hospitals to have quotas on the amount of patients brought into a location. Intuitively, a reasonable person could assess that safer procedures would have less need for admitting privileges based on quotas because the procedures are so safe that emergency situations are rarely needed if need at all.

So as a result from Texas’s assertion that admitting privileges would help protect women’s health, women’s access to healthcare became needlessly burden. And “when 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 record of such a case,” as  stated in the transcript of the Oral Argument 47.

It’s beyond a rational belief that surgical center requirements are beneficial

In a similar fashion, the evidence showed no appreciably benefits when ambulatory surgical-center requirements were applied to abortion facilities. Prior to H.B. 2’s passage, abortion facilities already had to meet health, safety, and procedural standards. When adding in these ambulatory surgical-center requirements, “risks are not appreciably lowered for patients” and women “would not obtain better care or experience more frequent positive outcomes at an ambulatory surgical center”.

Justice Ginsburg in her concurring opinion stated ” [g]iven those realities, it is beyond rational belief that H.B 2 could genuinely protect the health of women, and certain that the law ‘would simply make it more difficult for them to obtain abortions.” Likewise, many other states across the country have similar laws or regulations that have similar effects and purposes as H.B. 2 and the decision here will arm many pro-choice groups to taken on the laws passed in their areas.

And with this decision SCOTUS just messed with Texas!

While the big focus will be on the many challenges to state laws and regulation in the coming weeks, we can’t forget the other monumental occurrence that comes from this decision.  Five justices, a group of abortion providers, supporters and lawyers totally messed Texas and knocked it down. But let’s be honest, like many of the other southern states, Texas will try to rise again with new tactics and strategies to limit abortion access.

Whole Woman’s Health was decided based on the evidence presented (or lack there of), but this does not mean every case going forward will be so fortunate or that states like Texas will stop trying limit abortion access.

There are still many avenues for anti-abortionist to work with to limit access to abortions.  We must stay vigilant in our fight to ensure access to abortion is not taken away and even more so to fight to expand access for the many woman who already have substantial barriers blocking their access.

But as for today, celebrate and rejoice, and spread those Notorious RBG memes we all love so dearly. Tomorrow remember that we still have work to do.

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