By Maria Dudenhoeffer
Case Background
On March 2, 2016 the Supreme Court will hear oral arguments on the case Whole Woman’s Health v. Cole. This case will review Texas House Bill 2 (HB2), which was enacted on July 18, 2013. The bill itself concerns restrictions on women’s access to abortion clinics. This is the first case on reproductive rights that the Supreme Court has heard in over 8 years and has the potential to affect how abortion restrictions are evaluated by courts nationwide.
Planned Parenthood v. Casey
The Supreme Court will decide whether or not the restrictions set forward in HB2 violate the “undue-burden” standard established in the 1992 case Planned Parenthood of Southeastern Pennsylvania v. Casey. This case reaffirmed the decision made in the landmark Roe v. Wade that women have a constitutional right to terminate their pregnancies, but ruled that states may impose restrictions as long as they do not place an “undue burden” on the mother. Planned Parenthood v. Casey established that when women are seeking to obtain an abortion before the fetus attains viability, “An undue burden is an unconstitutional burden… and a provision of law is invalid if its purpose or effect is to place a substantial obstacle in the path of a woman.” [1]
Texas House Bill 2 (HB2)
The restrictions on abortion in Texas came into the national spotlight in 2013, when State Senator Wendy Davis famously filibustered the controversial abortions restrictions in the Texas Senate Bill 5 (SB5). [2] However, later in 2013, Texas House Bill 2 was signed into law.
HB 2 contains numerous restrictions on abortions. One is a 20-Week Abortion Ban in which no abortions can be provided past 20 weeks unless an abortion is necessary to avert the woman’s death or if the fetus has a severe fetal abnormality. [3] Another restriction is in regards to Medication Abortion restrictions. HB2 prohibits dispensing abortion-inducing drugs by anyone other than a physician and requires that the physician first examine the woman, forcing the exam to be in person.
There are two main restrictions in HB2 that Whole Woman’s Health v. Cole focuses on. The first requires that all doctors who perform abortions must have admitting privileges at a hospital within 30 miles of where they perform the procedure. The second restriction requires that abortion clinics meet the same building requirements and possess the facilities of an ambulatory surgical center.[4]
Since 2013, when HB2 was enacted, the number of abortion clinics in Texas was reduced from 42 to 19. [5] If these restrictions are ruled constitutional by the Supreme Court, they will lead to the closure of additional abortion clinics in Texas, leaving at most 10 clinics open [6] across a state with an area greater than 250,000 square miles. To break that down by the Texan population, that leaves 1 abortion clinic for every 2.75 million people.
So why exactly is this the case? For the first restriction, local hospitals have no incentive to allow an abortion provider to admit patients, so hospitals will not choose to grant admitting privileges. For the second restriction, the cost of abortion clinics to possess the facilities of a surgical center is very high, and thus, unaffordable for many clinics.
While Texas legislators have argued that these restrictions ensure that abortion clinics have higher standards of medical care, the local abortion clinics and doctors, along with officials from organizations like the American Medical Association argue that these restrictions serve no medical purpose and that the bill is designed to force clinics in Texas to shut down. [3]
Planned Parenthood v. Abbott
This is not the first time that the Texas House Bill 2 has been challenged. A lawsuit, Planned Parenthood v. Abbott, was filed in September 2013 concerning two provisions of HB2, medication abortion restrictions, and the admitting privileges requirement. The admitting privileges requirements was in fact ruled unconstitutional by a federal district court in October 2013. However, “Texas appealed the ruling to the Fifth Circuit Court of Appeals… [and] on March 27, 2014, the Fifth Circuit upheld … the admitting privileges requirement as constitutional.” [3]
Whole Woman’s Health v. Cole
Whole Woman’s Health v. Cole was filed in April 2014 and challenged two aspects of HB2: the admitting privileges requirements and the requirement that every abortion clinic must have facilities equal to a surgical center. In August 2014, a federal district court ruled that these requirements were unconstitutional because they “create an impermissible obstacle… to women seeking .. an abortion.”[3] Texas, as they did in Planned Parenthood v. Abbott, appealed to the Fifth Circuit and the Fifth Circuit stayed the district court’s ruling, which allowed the requirements to go into effect, shutting down all but eight clinics in Texas. While the Supreme Court vacated the Fifth Circuit’s decision in October 2014, the Fifth Circuit later upheld the requirements in HB2 in June 2015. [3]
Impact
The Supreme Court’s decision on Whole Woman’s Health v. Cole will impact what is considered an “undue burden” on women who are seeking abortions and could set the tone when it comes to reproductive rights for the next decade.
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