In Whole Woman’s Health v. Hellerstedt, No. 15-274 (June 27, 2016), the Supreme Court struck down two provisions of a Texas law relating to the regulation of abortion clinics in that state. Those provisions required, first, that abortion doctors have admitting privileges at a hospital located within 30 miles from their facility, and, second, that the facilities themselves satisfy the minimum standards for ambulatory surgical centers under Texas law. By a 5 to 3 margin, the court found that both provisions placed substantial obstacles in the paths of women seeking pre-viability abortions, and thus constituted an undue burden on their access to abortion.
Whole Woman’s Health marks a notable change in emphasis in the Supreme Court’s abortion jurisprudence. In two important ways, it shifts the focus from the approach taken in Gonzales v. Carhart (2007), the court’s previously most recent abortion decision. To begin with, Justice Breyer’s opinion for the majority repeatedly refers to the need for the trier of fact to weigh the burdens imposed upon access to abortion against the benefits flowing from the regulations in question. This risk-benefit type of approach requires detailed findings of fact, and those supporting the challenged regulations will need to present detailed evidence regarding the specific benefits of those provisions. This evidence would include identifying deaths and serious injuries experienced by women attending abortion clinics in the particular state, and further indicating how the legislation at issue will address those types of incidents. Such detailed evidence will be particularly important given the fact that the majority opinion puts two thumbs on the scale against upholding any abortion regulation of the type involved in Whole Woman’s Health. Thus, the majority emphasized the safety of abortion compared to other procedures (abortion is “safer… than many common medical procedures”), and dismissed the contention that the Texas law would address the type of gruesome infanticides experienced in Kermit Gosnell’s Pennsylvania abortion clinic. On the latter point, Justice Breyer opined that while “Gosnell’s behavior was terribly wrong…, there is no reason to believe that an extra layer of regulation would have affected that behavior.”
A second significant change from prior Supreme Court abortion decisions relates to the level of deference that should be afforded state legislation. Gonzales v. Carhart held that fact-finding is subject to a “deferential standard,” indicating that “where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.” By contrast, Whole Woman’s Health substitutes a burdens versus benefits analysis, cautioning that it “is wrong to equate the judicial review applicable to the regulation of a constitutionally protected personal liberty with the less strict review applicable where, for example, economic legislation is at issue.”
These changes made by Whole Woman’s Health are particularly important because of the solid five justice majority in the case, including the joinder of Justice Kennedy, author of the Gonzales opinion, in the majority opinion. As such, it makes little difference as to the jurisprudential approach to abortion regulation of the new justice who eventually replaces Justice Scalia. In light of these changes, particular emphasis in future cases will be placed upon the factual findings relating to burdens and benefits made by the trial court. Thus, it is unlikely that the Supreme Court will review more abortion cases in the near future, but will, in all probability, simply vacate and remand other cases for reconsideration under Whole Woman’s Health.
One critical question that does remain open, however, is the type of cases as to which the burdens versus benefits approach is mandatory. Thus, for example, will state legislation mandating that a woman undergo an ordinary ultrasound before she procures an abortion be subject to this standard? In addition, if that standard does apply, what are the relevant “benefits” to be weighed in such a case? Should, for example, those benefits include the benefits to both the state and woman regarding making an informed choice as to whether she wishes to abort the life she sees on the ultrasound? Thus, Gonzales v. Carhart implies that, even if the burdens versus benefits approach does apply, the state has a legitimate interest in promoting “respect for life, including life of the unborn.” Finally, is any burden imposed upon the woman by the requirement that she undergo an ultrasound a “substantial” one which also places a “burden on access to” abortion?