Abortion, Admitting Privileges, and the Supreme Court: Whole Woman’s Health v. Hellerstedt

February 22, 2016 10 min read Download Report

Elizabeth Slattery

@EHSlattery

Former Legal Fellow and Appellate Advocacy Program Manager

Elizabeth Slattery researches and writes on the rule of law, separation of powers, civil rights, and other constitutional issues.

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This term, the Supreme Court of the United States will consider its first major abortion-regulation case since 2007. Its ruling in this case could affect abortion safety standards in nearly half of the states.

In 2013, Texas passed a law mandating that abortion clinics must meet the same cleanliness and safety regulations that ambulatory surgical centers (ASCs) are required to meet and that doctors must have admitting privileges at local hospitals. In Whole Woman’s Health v. Hellerstedt, the Supreme Court will consider whether these common-sense regulations aimed at protecting the health and safety of women pass the “undue burden” standard articulated in Planned Parenthood v. Casey (1992)[1]. The Court should rule for Texas and confirm that states have a legitimate interest in ensuring the safety and health of women who enter abortion clinics.

State Regulation of Abortion

In recent years, a number of state legislatures have passed regulations to ensure that women are not subject to substandard conditions or practices at abortion clinics that could jeopardize their health and even lives.[ ]The dangerous and unsanitary conditions of Philadelphia abortionist Kermit Gosnell’s clinic shocked the nation when they came to light during his murder trial in 2013, and many states passed measures to prevent such abuses from occurring in the future.

Today, 29 states require abortion clinics to meet minimum health and safety standards. Some requirements include limiting the distance to a nearby hospital in the event of complications and ensuring that hallways are wide enough so that, for example, wheeled stretchers are able to pass through them.[2]

More than a dozen states also require doctors who perform abortions to have admitting privileges at a nearby hospital or an agreement in place for transferring patients in the event of complications.[3] Admitting privileges further continuity of care for patients and also address the problem of emergency rooms not having enough ob-gyn specialists on call to deal with complications resulting from an abortion.

Advocates of abortion claim that abortion is “one of the safest types of medical procedures,”[4] leaving women with the mistaken impression that an abortion is a routine procedure with few possible complications. The reality is that complications following an abortion—including infection, hemorrhage, and uterine perforation, among others—can occur even in pre-viability abortions and could require emergency care and transfer to a hospital.[5] Regrettably, the abortion industry has fought sensible reforms, arguing that such measures are simply intended to shut down clinics.

Recent Abortion Jurisprudence

Though the Supreme Court invented a constitutional right to abortion in Roe v. Wade in 1973, the justices were clear that this ruling should not preclude states from placing reasonable requirements on abortion clinics and doctors:

The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient. This interest obviously extends at least to the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that might arise.[6]

In Roe, the Court used the trimester framework to determine the point during a pregnancy at which the government’s interest in protecting maternal health and unborn life could outweigh a woman’s interest in getting an abortion. As the Court explained, the government’s legitimate interest in abortion safety becomes “compelling” after the first trimester and may be vindicated by “requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed….”[7] As for protecting unborn life, the Court said that this interest becomes compelling once the unborn child “presumably has the capability of meaningful life outside the mother’s womb” and that a state could therefore prohibit third-trimester abortions “except when it is necessary to preserve the life or health of the mother.”[8]

In Planned Parenthood v. Casey, the Court replaced the trimester framework and the related requirement that government have a compelling interest before regulating the abortion industry with the “undue burden” test. This prohibits states from passing abortion regulations before viability that have the “purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion.”[9] States could prohibit abortion after viability, which the Court reiterated remained the touchstone for when the “balance of interests tips,” subject to an exception for maternal health.[10] The Court recognized that medical advances had shifted viability from 28 weeks gestation at the time Roe was decided to 23–24 weeks gestation.[11]

Employing the new standard, the Casey Court upheld a state law requiring informed consent and a 24-hour waiting period before a woman could obtain an abortion but struck down a spousal notification requirement as an undue burden. The Court also upheld a parental consent provision for minors seeking abortions.

Then, in Gonzales v. Carhart (2007), a challenge to the federal law banning partial-birth abortions, the Court clarified that while laws regulating abortion must not impose an undue burden, they are subject to rational basis review, which requires that a law be rationally related to a legitimate state interest. This is the least difficult standard of review to meet. The Court explained:

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. The Act’s ban on abortions that involve partial delivery of a living fetus furthers the Government’s objectives.[12]

Thus, the Court’s current abortion jurisprudence reflects three guiding principles:

The state maintains legitimate and important interests in protecting the mother’s health and safety and the life of the unborn child throughout pregnancy.
Before viability, states may pass regulations that do not have the purpose or effect of imposing an undue burden on women who are seeking abortions.
After viability, states may ban certain abortion procedures outright, provided there is an exception for the mother’s health.

Legal Challenges to the Texas Law

In 2013, Texas passed H.B. 2, which requires that abortion clinic doctors must have admitting privileges at a hospital within 30 miles of the clinic and that clinics must meet the minimum health and safety standards that other ambulatory surgical centers have to meet. Those regulations include standards for the operation of a facility (including requirements to ensure quality of care, facility cleanliness and safety, adequate staffing, and safe pathology and medical laboratory services, among others); fire prevention and safety; and physical and construction requirements.[13]

Planned Parenthood of Greater Texas, other clinics, and abortion doctors immediately challenged the admitting privileges provision. A federal district court judge temporarily enjoined the implementation of this provision, but on appeal, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit unanimously reversed. The appeals court determined that, with the exception of doctors who had applied for admitting privileges and had not yet received a response, the state could enforce the admitting privileges provision.

In a second lawsuit, some of the same doctors and abortion clinics (minus Planned Parenthood) again challenged the admitting privileges provision and ASC requirements. The same district court judge enjoined the implementation of both provisions, finding that they imposed an undue burden on women seeking pre-viability abortions. In a broad ruling, the judge facially invalidated the admitting privileges provision—entirely barring the state from enforcing it, even though the challengers sought to enjoin the law only as it applied to them.[14]

Again, a three-judge panel of the Fifth Circuit (which included two of the three judges from the previous panel) unanimously reversed. Having previously upheld the admitting privileges provision, the panel noted that “[h]owever much a district court may disagree with an appellate court, a district court is not free to disregard the mandate or directly applicable holding of the appellate court.”[15] Evaluating H.B. 2 under the rational basis standard, the panel found that the legislature’s goals of “rais[ing] the standard and quality of care for” and “protect[ing] the health and welfare of women seeking abortions” were legitimate state purposes and were not intended merely to place obstacles in the path of women seeking abortions.[16] The panel concluded, “There is no question that this is a legitimate purpose that supports regulating physicians and the facilities in which they perform abortions.”[17] Further, the panel found that the district court erred by “substituting its own judgment for that of the legislature” with respect to whether H.B. 2 advances the state’s interests in maternal health and increased quality of care.

Arguments at the Supreme Court

The challengers asked the Supreme Court to review the Fifth Circuit’s decision, and the justices agreed to hear the case. The challengers argue that the legislature had an impermissible purpose for passing these regulations: to close abortion clinics and “single out abortion for heightened medical regulation.”[18] They maintain that the regulations are obstacles to abortion access that are unsupported by the state’s interest in women’s health. They argue that the challenged provisions are “not reasonably designed to advance the State’s interest in women’s health” because some clinics will not be able to meet the requirements and will be forced to shut down.[19] With fewer places to go, the challengers claim, women will turn to illegal abortions. The challengers assert that how the law operates is “strong evidence of its object”—and that the object is to make it more difficult for women to obtain abortions.[20]

In defense of its law, Texas argues that there is ample evidence that these regulations are necessary to advance women’s health and safety. When the Texas legislature considered H.B. 2, it heard testimony from numerous medical professionals about the benefits of admitting privileges and ASC standards, as well as the serious complications that can result from abortion. One doctor explained that admitting privileges “not only [advance] continuity of care but the peer review processes of the hospital would be brought to bear and ensure quality.”[21] Another testified that the ASC requirements “‘keep the patients safe’ and that ‘simple things like physical plant requirements to have a generator in case the power goes out [and] CPR training’ are important ‘in case there’s a complication.’”[22] Texas points out that the Supreme Court upheld a stricter ASC requirement in Simopoulos v. Virginia (1983),[23] “recognizing that it furthered the legitimate state interest in ensuring patient health.”[24]

Texas also asserts that the challengers “seek to upend Casey’s undue-burden test” and turn the courts into “medical board[s] with powers to approve or disapprove medical and operative practices and standards throughout the United States,” thereby overriding legislative determinations.[25] Though some abortion clinics may close because they are either unable or unwilling to meet the ASC requirements, that does not transform the regulations into an undue burden. As the Court explained in Casey, the fact that regulations might make it more difficult or more expensive to obtain an abortion does not mean they are per se undue burdens.[26] Moreover, as Texas notes, “an abortion clinic will remain operational in each metropolitan area where petitioners allege one would close if the Court affirms…. Over 90% of Texas women of reproductive age will live within 150 miles of an operational abortion clinic.”[27] Thus, the challengers cannot show that these provisions impose an undue burden “in a large fraction of cases,” which would be necessary for the Court to facially invalidate the law.[28]

Texas also argues that as a procedural matter, the challengers may not relitigate the admitting privileges challenge, having raised it (and lost) in the first lawsuit. Likewise, the challenge to the ASC requirements also should have been raised in that first suit.[29] Thus, Texas maintains that the admitting privileges and ASC provisions advance the state’s legitimate interest in protecting women’s health and should survive the undue burden standard.

In addition to the briefs filed by the challengers and Texas, dozens of groups have filed amicus curiae (friend of the court) briefs in support of each side, addressing a variety of policy and legal issues. Two briefs tell the stories of women who have had abortions. The brief of Kate Banfield and nine other women details why they had abortions and how abortion purportedly empowers women. A more powerful brief filed on behalf of 3,348 women injured by abortion describes how many clinics focus on speed and volume at the expense of women’s safety. Though they should focus on the legal arguments, the real-life consequences of their decision on these and similar women will likely be on the minds of many of the justices.

Conclusion

In the more than 40 years since the Supreme Court invented a constitutional right to abortion, the abortion industry has evaded and fought common-sense regulations at every step.[30] The result has been horrors like those found in the Gosnell clinic, which for years, due to lack of regulation and oversight, harmed women and killed children born alive.

The Supreme Court now has an opportunity to confirm that states have a legitimate interest in ensuring the safety and health of women who enter abortion clinics. The justices would do well to uphold Texas’s reasonable law and reconsider the long, deadly shadow that its abortion decisions have cast over American law, medicine, and society.

—Elizabeth H. Slattery is a Legal Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.

[1] 505 U.S. 833 (1992).

[2] See State Policies in Brief: Targeted Regulation of Abortion Providers, Guttmacher Institute (Feb. 1, 2016), available at https://www.guttmacher.org/statecenter/spibs/spib_TRAP.pdf. See also Response Package for SCOTUS Cert Decisions: Whole Woman’s Health v. Cole & Currier v. Jackson Women’s Health Organization, Americans United for Life (2015).

[3] Id.

[4] Safety of Abortion, National Abortion Federation, available at http://prochoice.org/wp-content/uploads/safety_of_abortion.pdf.

[5] See Brief of the Association of American Physicians and Surgeons, Whole Woman’s Center v. Hellerstedt (No. 15-274).

[6] Roe v. Wade, 410 U.S. 113, 150 (1973).

[7] Id. at 163.

[8] Id. The companion case to Roe, Doe v. Bolton, ruled that the potential health effects of an abortion were to be determined by the person performing the abortion and could include the mother’s “well-being” in light of “physical, emotional, psychological, familial [factors], and the woman’s age.” 410 U.S. 179, 193 (1973).

[9] 505 U.S. 833, 877 (1992) (plurality opinion). In Gonzales v. Carhart, 550 U.S. 124, 146, the Court noted that “Casey rejected both Roe’s rigid trimester framework and the interpretation of Roe that considered all previability regulations of abortion unwarranted.”

[10] Id. at 861.

[11] Today, viability remains around 23–24 weeks gestation. See Matthew A. Rysavy et al., Between-Hospital Variation in Treatment and Outcomes in Extremely Preterm Infants, 372 New Eng. J. Med. 1801 (2015) (showing survival rates from 22–26 weeks gestation). Under current case law, a state’s interest in protecting the life of an unborn child depends on the year and current state of medicine. A federal appeals court articulated in a challenge to North Dakota’s fetal heartbeat law that this demonstrates why it is “better left to the states, which might find their interest in protecting unborn children better served by a more consistent and certain marker than viability.” MKB Management Corp. v. Stenehjem, 795 F.3d 768, 774 (2015). Though it may be beyond the scope of the case currently pending before the Supreme Court, in an appropriate case, the Court should revisit its abortion jurisprudence and allow states to pass reforms reflecting advances in prenatal medicine.

[12] Gonzales v. Carhart, 550 U.S. 124, 158 (2007).

[13] Tex. Health & Safety Code § 245.010(a).

[14] The state sought and received a stay of the district court’s ruling from the appeals court while the appeal was pending, which would have allowed the state to implement the challenged provisions. The challengers asked the Supreme Court to overturn the stay, leaving the district court’s injunction in place. Over the dissent of Chief Justice Roberts and Justices Scalia, Thomas, and Alito, the Supreme Court granted the challengers’ request for temporary relief.

[15] Whole Woman’s Health v. Cole, 790 F.3d 563, 581 (2015).

[16] Id. at 584.

[17] Id.

[18] Brief for Petitioners at 36, Whole Woman’s Health v. Hellerstedt (No. 15-274). The respondent’s name change reflects the appointment of a new commissioner of the Texas Health and Human Services Commission.

[19] Id. at 36–37.

[20] Id. at 40–41.

[21] Brief for Respondents at 34, Whole Woman’s Health v. Hellerstedt (No. 15-274).

[22] Id. at 39–40.

[23] 462 U.S. 506 (1983).

[24] Brief for Respondents at 16.

[25] Id. at 20.

[26] Casey, 505 U.S. at 873. “The fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it.” Id.

[27] Brief for Respondents at 44–45. See also Brief for Respondents at app. 5a.

[28] Id. at 29.

[29] Id. at 17.

[30] With the recent death of Justice Scalia, the Court has eight members. As a general matter, the Justices might divide evenly on any case so that there would be no majority. When the Court divides evenly, it normally issues as its decision in the case that “the judgment is affirmed by an equally divided Court” and says nothing further, see, for example, Costco Wholesale Corp. v. Omega, 562 U.S. 40 (2010). On rare occasion one or more Justices may issue an opinion about an equally-divided case, see, for example, Ohio ex rel. Eaton v. Price, 364 U.S. 263 (1960). When the Court has affirmed by an equally divided Court, the decision to affirm is not entitled to “precedential weight.” Neil v. Biggers, 409 U.S. 188, 192 (1972).