On March 2, the U.S. Supreme Court will hear oral arguments in Whole Woman’s Health v. Cole. The case involves two provisions of a Texas law referred to as HB2. The first requires abortion practitioners to have admitting privileges at a hospital within 30 miles of where they perform abortions, and the second requires abortion facilities to meet ambulatory surgical center (“ASC”) standards governing operating protocols, the physical plant itself and general safety.
In Roe v. Wade, the U.S. Supreme Court case creating a right to abortion, the court recognized that state abortion laws may serve a variety of public purposes — what the court called “state interests.” Roe identified two: protecting the health and safety of the mother and protecting the prenatal or potential human life within her.
According to a later case, Planned Parenthood v. Casey, laws designed to ensure the woman’s safety can be applied throughout pregnancy unless the law “has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”
The Texas law before the court in Whole Woman’s Health is not designed to directly protect the unborn child, but instead attempts to protect women who choose to undergo abortions. HB2 applies to all forms of abortion — both surgical and medical — and at all stages of pregnancy.
A group of small abortion facilities have challenged the law, claiming that the safety of abortion makes the law unnecessary. They argue that the cost of meeting the ASC standards will drive them out of business, ultimately closing 75% of the state’s clinics. The clinics are joined by some abortionists, who claim that the admitting-privileges requirement is unnecessary due to the small number of women who experience complications from abortion.
The doctors claim that local hospitals will refuse to grant them privileges due to a variety of factors, including general hostility toward abortion.
In short, the plaintiffs argue that the Texas law is not about women’s safety, but motivated by a desire to make abortion virtually unavailable in most parts of that large state. If true, under existing constitutional interpretation, this would render the law unconstitutional.
In defense of the law, Texas argues that even if HB2 results in some clinic closures, 83% of Texas women will still live within 150 miles of an abortion center. The law merely requires that abortion outlets meet the general safety standards applied to other facilities that operate primarily to provide surgical services (such as cataract removal, colonoscopies, knee arthroscopies and tonsillectomies). The admitting-privileges requirement ensures continuity of care for women needing hospitalization due to injuries or unanticipated conditions arising from their abortions. The law advances the state’s interest in the health and safety of women seeking abortions and, therefore, is constitutional.
Texas lost the case at the trial-court level. The trial court found that complying with the admitting-privileges requirement and the ASC standards would impose substantial burdens on abortion providers, while doing little to improve the safety and care of women.
The state appealed the ruling to the Court of Appeals for the 5th Circuit, arguing that the trial court erred by requiring the state to prove that the law would actually improve women’s health care.
Courts are required to presume laws are constitutional until the plaintiffs prove otherwise. Relying on the Supreme Court case upholding the federal partial-birth abortion ban, Gonzales v. Carhart, Texas argued that when competing medical opinions exist over the necessity of a procedure or practice, the legislatures, not courts, get to decide what opinion to rely upon. States have “‘wide discretion’ to pass medical regulations,” and the trial court should not have gone beyond establishing that the state had a rational basis for enacting HB2. The court of appeals agreed with Texas and upheld the constitutionality of the law.
The abortion providers then petitioned the U.S. Supreme Court for review of the case, and the court granted certiorari (an order by which a higher court reviews a decision of a lower court), in part because several states have laws similar to HB2, and many of those laws are being challenged in the courts throughout the country.
Shortly after the Supreme Court agreed to hear the Texas case, a Wisconsin law requiring abortionists to obtain admitting privileges at local hospitals was struck down by the Court of Appeals for the 7th Circuit in Planned Parenthood v. Schimel. The three judges hearing the case split over the constitutionality of the law. Judge Richard Posner, writing for himself and Judge David Hamilton, opined: “[A] statute that curtails the constitutional right to an abortion, such as the Wisconsin and Texas statutes, cannot survive challenge without evidence that the curtailment is justifiable by reference to the benefits conferred by the statute.” Posner then went on to explain why he and Hamilton concluded that the state of Wisconsin failed to carry its burden of proof.
Judge Daniel Manion, writing in dissent, observed, “Rather than shift the burden to the state to provide reasons it was justified to enact the law at issue, we are obligated to uphold a law that regulates abortion where there is a rational basis to act, so long as the law does not have the effect of imposing an undue burden on a woman’s ability to make the decision to choose abortion. Here, the court sets this burden of proof exactly backwards.”
Manion noted that the Wisconsin law, like the Texas law, was enacted in part in response to the case of Dr. Kermit Gosnell, the infamous Philadelphia abortionist now serving a life sentence for murdering three newborns. Manion wrote:
“Dr. Gosnell was able to run his operation in a regulatory vacuum, derived in no small part from the view held by some that any regulation upon his practice was a threat to the constitutional rights of his patients. … Where state regulation imposes on doctors measures designed to improve patient safety, doctor-patient interests may diverge. Because that is precisely the case in this instance, we must look to the regulation’s effect on the prospective patient, not to the inconvenience the regulation presents to the abortionist.”
On March 2, lawyers for Texas will try to persuade at least five Supreme Court justices that the 5th Circuit (and Manion) got it right. They will argue that abortion laws are not exempt from the general rule that state legislatures, not courts, are constitutionally empowered to decide how best to promote public health and safety.
Abortion providers will argue that abortion is constitutionally unique and that courts are free to override legislative judgments that increase the costs of abortion. The abortion businesses will claim that any law that reduces access to abortion is presumptively unconstitutional and only constitutional if the state can prove that the law will improve the safety of abortion to the satisfaction of federal judges.
When the Supreme Court rules in Whole Woman’s Health v. Cole, we will learn whether it will embrace the providers’ very odd reading of the U.S. Constitution — a reading that virtually exempts the abortion industry from any government regulation that increases the costs of their services.
If the court upholds the Texas law, it will be one more step toward restoring the right of the people to have laws protecting women (and unborn children) written by our elected representatives, not courts.
If the court sides with the abortionists, the ruling will create a unique judicial form of economic protectionism for an industry that, in the words of Supreme Court Justice Anthony Kennedy, many Americans believe profits from “acts of violence against innocent human life.”
Teresa Collett is a professor at the University of St. Thomas School of Law.