Whole Woman’s Health v. Hellerstedt

Social Issues More Information On: Life Issues

Case Name: Whole Woman’s Health v. Hellerstedt
At Issue: Life Issues
Hearing Date: March 2, 2016
Decided: June 27, 2016

In a 5-3 decision, the U.S. Supreme Court handed down on June 27, 2016, a blow to the pro-life movement. Justice Anthony Kennedy sided with the four liberal justices ― Breyer, Ginsburg, Kagan and Sotomayor ― to strike down a common-sense law designed to protect the health and safety of women.

Bruce Hausknecht, judicial analyst for Focus on the Family, released the following statement in response to the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt.

"We are disappointed today to hear that the U.S. Supreme Court has rejected the commonsense regulations passed by the Texas legislature to protect the health and safety of women undergoing abortions.

"As a Christian, pro-life organization, we oppose abortion as a general principle. Until the day comes when this horrific practice that has already taken the lives of over 53 million Americans is ended, however, we will continue to advocate for and support state laws that protect the other victim of abortion: the mother.

"The Texas law at issue requires abortion facilities to meet the same health and medical standards as other ambulatory surgical centers that perform outpatient procedures, as well as requiring abortionists to maintain admitting privileges at a nearby hospital, in case an abortion procedure results in an emergency or later follow-up trip to the hospital.

"As Texas lawmakers considered this law, they heard ample evidence from medical experts on the need for such regulations. It is discouraging that the Supreme Court chose to second-guess the legislature’s fact-finding.  States have a duty to protect the health and safety of the public.

"Further, the Texas law was prompted by the ghastly history of Kermit Gosnell’s abortion activities in Philadelphia, in which unsanitary conditions and poor medical practices resulted in the deaths of a woman and several babies born alive during an abortion procedure, for which Gosnell and others were convicted in 2013. Pennsylvania and other states have already implemented laws similar to the Texas law. In light of what we have come to know about the abortion industry’s practices and the dangers associated with the procedure itself, reasonable people should not question the need for such laws.

"Making all surgery as safe as possible for women is common sense and pro-woman. This ruling should be an encouragement to other states to follow Texas’ example. This ruling is an affront to common sense and potentially places women in danger."

This decision reversed a previous ruling by the U.S. Court of Appeals for the 5th Circuit, which upheld the Texas law. Whole Woman’s Health v. Hellerstedt was the first abortion case to reach the Supreme Court in nearly a decade.

Case Summary

Deemed by both sides of the abortion debate as the most important abortion case in the last 20 years, the U.S. Supreme Court heard oral arguments in Whole Woman's Health v. Hellerstedt on March 2, 2016. A Court ruling is anticipated in June, unless the case is carried over to the Court's next term. (See below: "What Happens In Case Of A 4-4 Tie?")

What's This Case About?

Key "States Rights" Question Before The Court: How far can a state go to protect the health and safety of a woman seeking an abortion before it violates the "right" to abortion, which was created by the U.S. Supreme Court in 1973?

Texas passed a law (H.B. 2) in 2013, regulating the abortion industry. It contains two parts:

  1. Abortion facilities must meet the same medical and safety standards that the state sets for ambulatory (outpatient) surgical centers; and
  2. Doctors performing abortions must have admitting privileges at a nearby hospital, in case of post-abortion complications requiring emergency or continuing care for the woman.

Both requirements are designed to protect the health and safety of women seeking abortions.

The law was challenged by various abortion sellers as unconstitutional. The challengers allege the Texas law's requirements exceed those allowable under the "undue burden" test created by the U.S. Supreme Court in Planned Parenthood v. Casey (1992). The Texas law was upheld last year by the 5th U.S. Circuit Court of Appeals, and the abortion sellers now appeal that decision to the U.S. Supreme Court.

Key Legal Question Before The Court:Can courts ― because this is an abortion case ― second-guess the fact-finding of state legislatures?

The abortion sellers in this case are asking the Supreme Court to hold that courts, not state legislatures, have the final say on what facts support the enactment of an abortion law ― or not. Why is that controversial? The answer requires us to look at the way our Founders created our three branches of government, and why.

'Separation of Powers': The Constitutional History of Legislative Fact-Finding

Our national and state constitutions embody the concept of the "separation of powers" so no one branch of government ― executive, legislative or judicial ― can acquire too much power. There are also "checks and balances" built into the system, which reinforce this delicate balance. Thus, courts are historically limited in their authority over challenged statutes. They are not supposed to strike down laws that they simply don't like. They are supposed to interpret the meaning of statutes and constitutional provisions as applied to specific cases.

Ever since the Supreme Court's 1803 decision in Marbury v. Madison, courts have generally been understood ― for better or worse ― to also have the authority to nullify a statute, if it conflicts with a constitutional provision. This is called the "doctrine of judicial review."

However, under the "separation of powers" doctrine, courts have always deferred to the fact-finding decisions of state legislatures in support of the laws they pass, because such fact-finding is inherently part of the legislative process. Legislatures possess the power to investigate the facts, decide how those facts determine the necessity for a law, and create a law custom-made for those facts. Courts have nothing similar at their disposal, and the Founders intended it that way. However, the abortion sellers in this case are asking the Supreme Court to reject that constitutional principle when it comes to the case of laws that regulate abortion.

Where Do The Justices Stand On The Issue Of Regulating Abortion?

Prior to Justice Scalia's death, the issue of abortion in this case would likely have generated a familiar 5―4 vote split on the Supreme Court. We've seen this split occur on many social issues based on the familiar ideological pattern we've seen in the past: Four conservatives, four liberals, and Justice Anthony Kennedy in the middle as the unpredictable swing voter.

The four consistently liberal justices ― Stephen Breyer, Sonia Sotomayor, Ruth Bader Ginsburg and Elena Kagan ― will likely vote against Texas in this case. They lean to the view that most anything a state does to regulate abortion that makes it less frequent, or requires an abortion facility to meet higher standards, violates the constitutional "right" to an abortion.

Scalia's untimely death changes things. We could end up with either a 4―4 tie or a 5―3 defeat.

That's because the remaining three conservative justices ― Chief Justice John Roberts, Clarence Thomas and Samuel Alito ― will likely vote in support of the Texas law, as a reasonable regulation designed to protect the health and safety of women.

That leaves Justice Anthony Kennedy, who has voted for and against various abortion laws ― and is one of the authors of the 1992 Planned Parenthood v. Casey decision which introduced the "undue burden" test the Court will apply in this case. In the last abortion case to come before the Supreme Court, involving the federal ban on partial-birth abortion, Kennedy joined the conservative wing of the Court in upholding the federal law. And that's one reason why this case could end in a 4―4 tie. His vote in the Texas case is hard to predict, primarily because he helped author the Casey decision, which upheld the so-called "right to abortion."

What Happens If The Case Ends Up In A 4―4 Tie?

There are two possible results when the vote of the justices ends in a tie. First, the Court could let the tie stand. That operates to affirm the lower court decision, which, in this case, is favorable to the pro-life position. The Texas law would be upheld and we'd see even fewer abortion facilities in Texas as a result.

The other possibility is the Court could order the case to be continued to next year's term when a ninth justice would likely be confirmed, and have the case re-argued and another vote taken.

Other Facts

  • 9-Year Gap: This is the first abortion case the Supreme Court will consider since the 2007 Gonzales v. Carhart decision, affirming the constitutionality of the federal ban on partial-birth abortions.
  • 282: Number of state laws around the country regulating abortion passed since 2010, according to the Guttmacher Institute. Here's a summary list of state abortion laws.
  • Key Arguments Supporting This Case:
    • The Court owes substantial deference to the Texas Legislature's judgment on this quintessentially legislative issue. The health and safety regulations at issue here fall comfortably within the broad bounds of legislative discretion that this Court's cases recognize. Read Texas Values' Amicus Brief.
    • The Kermit Gosnell grand jury report specifically:
    • Recommended States require all abortions to be performed in ambulatory surgical centers, and
    • Found the abhorrent conditions and practices inside Gosnell's clinic were directly attributable to Pennsylvania's refusal to treat abortion clinicsas ambulatory surgical facilities.
  • Following the enactment of the Texas law, the number of abortion businesses in Texas dropped from 42 to 19, and might drop to 10, if the Supreme Court upholds the Texas law. However, that would strictly be a business decision on the part of those facilities to close rather than upgrade their facilities to the same standards as an outpatient surgery center.

Key Briefs

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