Whole Woman’s Health v. Hellerstedt

PETITIONER:Whole Woman’s Health, et al.
RESPONDENT:John Hellerstedt, Commissioner, Texas Department of State Health Services, et al.
LOCATION: Texas State Capitol

DOCKET NO.: 15-274
DECIDED BY: Roberts Court (2016- )
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 579 US (2016)
GRANTED: Nov 13, 2015
ARGUED: Mar 02, 2016
DECIDED: Jun 27, 2016

Donald B. Verrilli, Jr. – Solicitor General, for the United States as amicus curiae, for the petitioners
Scott A. Keller – for the respondents
Stephanie Toti – for the petitioners

Facts of the case

In 2013, the Texas Legislature passed House Bill 2 (H.B. 2), which contained several provisions related to abortions. One such provision required that any physician performing an abortion have admitting privileges at a hospital within 30 miles of where the abortion was performed, and another provision required that all abortion clinics comply with standards for ambulatory surgical centers. The petitioners are a group of abortion providers who sued the State of Texas seeking to invalidate those provisions in H.B. 2 as they relate to facilities in McAllen and El Paso. The petitioners argued that H.B. 2 denied equal protection, unlawfully delegated lawmaking authority, and constituted arbitrary and unreasonable state action. The district court dismissed the equal protection, unlawful delegation, and arbitrary and unreasonable state action claims and granted declaratory and injunctive relief against the enforcement of the two contested provisions of H.B. 2. The U.S. Court of Appeals for the Fifth Circuit affirmed the district court’s dismissal of the equal protection, unlawful delegation, and arbitrary and unreasonable state action claims and partially reversed the injunctions because the plaintiffs failed to show that they placed a substantial burden in the path of a woman seeking an abortion.


Should a court’s “substantial burden” analysis take into account the extent to which laws that restrict access to abortion services actually serve the government’s stated interest in promoting health?

Media for Whole Woman’s Health v. Hellerstedt

Audio Transcription for Dissenting Opinion – Alito – June 27, 2016 in Whole Woman’s Health v. Hellerstedt
Audio Transcription for Oral Argument – March 02, 2016 in Whole Woman’s Health v. Hellerstedt

Audio Transcription for Opinion Announcement – June 27, 2016 in Whole Woman’s Health v. Hellerstedt

John G. Roberts, Jr.:

Justice Breyer has our opinion this morning in case 15-274, Whole Woman’s Health versus Hellerstedt.

Stephen G. Breyer:

We here consider the constitutionality of two statutory provisions of Texas law both of which regulate facilities where abortions are performed.

The first provision concerns hospital admitting privileges.

Before that provision was enacted, Texas law required an abortion facility to maintain a written protocol for managing, among other things, the transfer of patients requiring emergency care to a hospital.

The law before us adds a requirement that a doctor performing or inducing an abortion have active admitting privileges at a hospital within 30 miles of the facility where the abortion is performed.

The second provision says that “the minimum standards for an abortion facility must be equivalent to the minimum standards for ambulatory surgical centers.

We have to decide whether these two provisions are consistent with the Federal Constitution as interpreted in our 1992 case, Planned Parenthood versus Casey.

We find that they are not consistent with the constitutional standards set forth in Casey and we hold both provisions unconstitutional.

The federal district court after a trial found the two provisions were unconstitutional.

They constituted an undue burden on a women’s right to choose.

The Court of Appeals Fifth Circuit reversed.

We in turn agree with the district court and we reverse the Court of Appeals.

The Fifth Circuit upheld the two provisions in question for several different reasons, independent reasons often, and we explain at length in our opinion why we reject each of those reasons.

I shall here summarize our basic reasoning.

First, the Court of Appeals pointed out that some of the doctors who brought this lawsuit had been part of an earlier case in which they also challenged the constitutionality of the admitting privileges requirement.

They lost the case.

For that reason the Court of Appeals held this lawsuit is barred by principles of res judicata which is a legal doctrine that says in essence you only get one bite of the same apple.

The question, however, is whether what we here really is the same apple.

Seeking the answer to that question and well-established legal principles, we conclude that it is not the same apple.

The restatement of judgments points out that “material operative facts occurring after the decision in the first action may provide a basis for a new and second action even if the second action in other respects resembles the first.

Suppose a group of the prisoners claim that a state is violating the Constitution by making them drink unhealthy water and they lose the claim, not enough evidence, but then suppose quite a few of them die of water contamination, because of that new critically important evidence, they could bring a second action similarly attacking the constitutionality of the state’s actions even if the second action was in other respects like the first.

The plaintiffs here brought their first case before the Texas Law took effect.

They brought this second case after it had actually taken effect and clinics had actually closed.

So we think it is rather like the prisoner hypothetical.

Second, the circuit court thought that the physicians should have brought their challenge to the surgical center requirement earlier, at the time they first challenged the admitting privileges requirement.

The court concluded that that same doctrine about the apples’ res judicata means that because they could have brought the surgical center challenged then, they can’t bring it now.

In our view, however, res judicata does not require those who wish to challenge one part of a complicated regulatory law, say like the long law that regulates securities or drugs, it doesn’t require them to challenge every part of that complex statute at the same time.

The provisions that are challenged here are distinct regulatory requirements, and so the doctors are free to challenge the surgical center requirement here in this new action as they have done so.

Turning to the constitutional merits, we think that Fifth Circuit applied the wrong legal standard.

That court said, “Medical uncertainty underlying a statute is for resolution by legislatures, not by courts.”

Stephen G. Breyer:

In Casey, however, the plurality wrote in its governing opinion that, “a statute which while furthering a valid state interest has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving those legitimate ends, and it added unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion imposes an undue burden on that right.

And in Gonzales v. Carhart, we pointed out the court retains a “independent constitutional duty to review factual findings where constitutional rights are at stake.”

We follow as we must Casey and Gonzales here and in doing so we decide whether there is undue burden looking to the existence or nonexistence of medical benefits as well as the burden the law imposes on a women’s access to abortion facilities.

Fourth, we find adequate legal support in the record for the district court’s conclusion that the admitting privileges requirement imposes an undue burden on a woman’s right to have an abortion.

The purpose of the requirement is to help ensure that women have easy access to hospital should complications arise during an abortion procedure, but the district court described abortion procedures in Texas as already extremely safe and it found that when compared with prior law, which you will remember already insisted upon a written protocol for transferring patients to a hospital in case of need.

In comparison to prior law the court said, the admitting privileges requirement brought about no health benefits.

The record backs this finding with peer-reviewed studies, with detailed expert testimony which we describe in our opinion.

Indeed, when directly asked in oral argument whether Texas knew of one single instance in which the new requirement would have helped even one woman obtain better treatment, Texas responded that there was no evidence of such a case in the record.

At the same time the district court found that as of and soon after the time Texas began to enforce the new requirement.

The number of facilities providing abortions in Texas dropped from about 40 to about 20.

The record contains sufficient evidence of a causal connection between the new law and those closures.

The closures mean fewer doctors, longer waiting times, increased crowding and significantly greater travel distances, all of which when taken together burden a woman’s right to choose.

In sum, the admitting privileges requirement places a burden upon a woman’s right which given the lack of health benefit is undue.

Fifth, the second provision of Texas Law requires an abortion facility to meet Texas’ minimum standards for ambulatory surgical centers.

We conclude that this provision too imposes an undue burden on a woman’s right to choose.

Before enactment of the provision, before enactment, abortion facilities were required to meet and they still are required to meet a host of health and safety standards involving for example, staffing, physical facilities, infection control, medical procedures, clinical procedures, patient rights and others.

The surgical center provision requires in addition that a facility maintain for example, personnel trained in cardiac life support and operating room with a clear floor area of at least 240 square feet.

A postoperative patient holding room, a postoperative recovery suite, a one-way traffic pattern, and they must meet special surgically related standards concerning ventilation, air-conditioning, piping, plumbing and others.

The district court found that requiring abortion facilities to meet these requirements will not provide women with better care or more frequent positive outcomes and the record adequately supports this conclusion.

It shows for example that abortions in Texas prior to the new law were safe with a total of five deaths occurring over 10 years or about one per 120,000 to 140,000 abortion procedures.

By way of comparison childbirth, ordinary childbirth is 14 times more likely to cause death.

Colonoscopy has a mortality rate 10 times as high, and liposuction has a mortality rate 28 times as high but Texas allows these latter procedures to take place at home or in a doctor’s office.

The record further supports the district court’s conclusion that many of the surgical center requirements such as standards designed to maintain sterile operating facilities have nothing to do with medical abortions or complications should they arise normally arise after the patient has left the facility.

At the same time, enforcement of the surgical center requirements will place a substantial obstacle in the path of a woman seeking an abortion.

The cost of compliance is high to the court where the court found it reduced the number of abortion providing facilities in Texas, remember it started at 40 to 7 or 8.

The district court wrote that the proposition of these seven or eight providers could meet the demand of the entire state stretches credulity.

The Court of Appeals said that that was clearly erroneous, but the finding rested upon the uncontested statement of an expert witness that the number of abortions at the seven or eight clinics would have to provide, would have to rise from 14,000 annually to 60,000 or 70,000.

That’s an increase by a factor of five.

And we think it adequately supported that conclusion in the record.

Suppose someone told you that a certain grocery store now serves 200 customers a week, a certain apartment building now provides apartments for 200 families, a certain train station now welcomes 200 trains per day, well it is conceivable that the store or the apartment building or the train station could just as easily provide for five times as many for a thousand customers, families or trains at no significant additional costs crowding or delay, but most of us would find this possibility highly improbable.

Stephen G. Breyer:

In this case, Texas looking outside the record, pointed to one new clinic that is able to serve 9000 women annually, but where we look outside the record which we normally would not do, we would also have to note the construction of that clinic, the largest in the nation seems to have cost $26 million, a fact that militates against not in favor of the ability of the seven or eight clinics to serve a large fraction of Texas women seeking an abortion.

The upshot is that we find adequate legal support for the district court’s finding that the surgical center requirement like the admitting privileges requirement provides few if any health benefits for women, poses a substantial obstacle to women seeking abortions and constitutes an undue burden on a woman’s constitutional right to do so.

Sixth, finally Texas argued here that in any event we should not hold the two provisions of Texas Law unconstitutional on their face i.e. across-the-board, because of the statute’s Severability Clause.

Rather the court should proceed clinic by clinic examining each application of the provisions to see whether they impose an undue burden as applied in each particular case.

In our view, however, the Severability Clause does not compel us to proceed clinic by clinic.

We have determined that the provisions are facially unconstitutional based on the undue burden they impose on the large fraction of women they affect, having reached that conclusion, proceeding application by application would impose enormous cost both on courts and on the litigants.

It would also allow legislatures to insulate statutes from facial review.

We consequently reject that approach.

We elaborate further on these and other matters in our opinion.

For the reason stated, and those contained in our opinion, we hold that the provisions of Texas Law; the admitting privileges requirement and the surgical center requirement are unconstitutional and we reverse the Fifth Circuit’s determination to the contrary.

Justice Ginsburg has filed a concurring opinion.

Justice Thomas has filed a dissenting opinion, and Justice Alito has also filed a dissenting opinion, which the Chief Justice and Justice Thomas join.