Can a state enforce laws that significantly reduce the availability of abortion services while failing to advance any valid interest, including the state’s interest in promoting health?
In 2013, the Texas Legislature passed House Bill 2 (“H.B. 2”), which imposed new requirements on abortion clinics. For example, H.B. 2 required a physician performing an abortion to have admitting privileges at a hospital within thirty miles of the abortion clinic. Whole Woman’s Health, a private abortion clinic, sued the state of Texas to lift the new restrictions. The Supreme Court will determine whether a state can enforce laws that significantly reduce the availability of abortion services while failing to advance any valid interest, including the state’s interest in promoting health. Whole Woman’s Health argues that H.B. 2 imposes an undue burden on women’s access to abortions. Hellerstedt contends that H.B. 2’s justification of improving patient health is supported by substantial evidence, and H.B. 2 will not impose a burden in the majority of cases. This case implicates H.B. 2’s effect on women’s health and H.B. 2’s imposed costs on women seeking abortions.
Questions as Framed for the Court by the Parties
1a. When applying the Due Process Clause standard associated with the Planned Parenthood of Southeastern Pennsylvania v. Casey decision, does a court err by refusing to consider whether and to what extent laws that restrict abortion for the stated purpose of promoting health actually serve the government’s interest in promoting health?
1b. Did the Fifth Circuit err in concluding that this standard permits Texas to enforce, in nearly all circumstances, laws that would cause a significant reduction in the availability of abortion services while failing to advance the State’s interest in promoting health—or any other valid interest?
2. Did the Fifth Circuit err in holding that res judicata provides a basis for reversing the district court’s judgment in part?
In 2013, Texas passed House Bill Two (“H.B. 2”), which places specific requirements on abortion clinics. See Whole Woman’s Health v. Cole, 790 F.3d 563 (5th Cir. 2015) at 576. The Texas Legislature stated that it enacted H.B. 2 to protect the health of women seeking abortions. Id.at 567. Shortly after H.B. 2’s passage, some of the parties named in this case sued the State of Texas to invalidate two provisions of H.B. 2: (1) the admitting privileges requirement, which requires a physician performing an abortion to have admitting privileges at a hospital within thirty miles of the location where the abortion is performed; and (2) the medication abortion provision, which requires compliance with the FDA protocol for the use of drugs inducing abortions. Id.at 567, 577. In that case, the district court granted relief to the plaintiffs, but the Fifth Circuit Court of Appeals issued a decision adverse to the plaintiffs. Id.at 577.
After the adverse decision, Whole Woman’s Health filed suit to challenge H.B. 2’s physician admitting privileges requirement as applied to abortion facilities in McAllen and El Paso. Id.at 566. Whole Woman’s Health also challenged H.B. 2’s ambulatory surgical center (“ASC”) provision, which requires abortion clinics to comply with ambulatory surgical centers standards. Id.at 567. An ASC provides surgical services to patients who do not require overnight hospital care. Id.at 76, fn. 13. There are three categories of ASC requirements: (1) operating requirements, which govern record systems, patient rights, quality assurance, staffing, and cleanliness; (2) fire prevention and general safety requirements; and (3) physical plant requirements, which govern location, physical construction, electrical, and plumbing. Id.at 577, 594–95. Whole Woman’s Health challenged H.B. 2’s ASC requirement facially and as applied to the McAllen and El Paso abortion facilities.Id.at 566.
Additionally, Whole Woman’s Health challenged H.B. 2 on other grounds. Id.at 577. It argued that H.B. 2 denies equal protection, unlawfully delegates lawmaking authority, and constitutes arbitrary and unreasonable state action. Id.Before trial, the United States District Court for the Western District of Texas dismissed these claims. Id.
At trial, the parties agreed that seven ASCs in five major Texas cities—Austin, Dallas, Fort Worth, Houston, and San Antonio—could continue providing abortions after the ASC requirement became effective, but all other facilities licensed to perform abortions would be prohibited from performing abortions. Id.at 578. The district court also found that Texas had over forty clinics prior to H.B. 2’s passage. Id.
The district court enjoined enforcement of the admitting privilege requirement and the ASC requirement as applied to all women and to the McAllen and El Paso abortion facilities. Id.at 577. Hellerstedt appealed to the Fifth Circuit Court of Appeals, asserting that the district court wrongfully enjoined enforcement of the two requirements. Id.at 579. Whole Woman’s Health appealed the district court’s dismissal of their equal-protection and unlawful-delegation claims and the district court’s failure to hold the ASC requirement unconstitutional as applied to future abortion providers. Id.The Fifth Circuit stayed the district court’s injunction, but the Supreme Court ordered that the district court’s injunction continue until the Fifth Circuit fully heard the appeal. Id.at 580.
The Fifth Circuit ultimately held that H.B. 2 can be enforced throughout Texas, but limited its holding with two exceptions. Id.at 567. First, the court upheld the injunction of ASC requirement as applied to McAllen abortion facility. Id.Second, the court upheld the injunction of admitting privilege requirement as applied to the McAllen facility. Id.On November 13, 2015, the Supreme Court granted certiorari.
In this case, the Court will decide whether the Fifth Circuit erred in upholding Texas’ House Bill Two—which requires abortion clinics in Texas to comply with the minimum standards for ambulatory surgical centers and requires that physicians obtain admitting privileges at local hospitals. See Brief for Petitioner at i; see Brief for Respondent at i. Whole Woman’s Health argues that the Texas law violates the Supreme Court’s ruling in Casey, because it has the purpose and effect of substantially limiting a woman’s constitutional right to obtain an abortion, while in no way improving the safety of the procedure. See Brief for Petitioner at 31–32. Hellerstedt argues that the regulation advances the State’s interest in patient health, and that Whole Woman’s Health failed to demonstrate that the regulations would create an undue burden. See Brief for Respondent at 21.
Whole Woman’s Health contends that the Texas law substantially reduces access to abortions in the State, but fails to simultaneously serve the State’s interest in women’s health. See Brief for Petitioner at 33. The law must have the purpose of addressing a valid state interest and must effectuate the change in the least restrictive manner to justify imposing obstacles on a woman’s constitutional right to an abortion. Id.at 34. Whole Woman’s Health asserts that the Fifth Circuit improperly upheld the law based on a rational basis test, requiring only that the State prove that it had some rational reason for passing the law. See id., at 47. Instead, Whole Woman’s Health urges the Court to weigh the burden that the regulation places on women seeking abortions against the State’s relative interest in protecting the unborn child and the health of the mother. See id., at 45–46.
Hellerstedt disagrees with Whole Woman’s Health’s characterization of the undue burden test established by Casey, arguing that a balancing test is inappropriate and instead the Court must analyze “whether the burden is so severe as to take away the ‘ultimate decision’ to have an abortion.” See Brief for Respondent at 20 (quoting Casey, 505 U.S. at 879). Further, Hellerstedt argues that state and federal legislatures have wide discretion to legislate in areas of medical or scientific uncertainty, and that the Court should not second-guess legislative decisions where there is sufficient evidence to support its action. See id.The State must only show that the regulation bears a “‘rational relationship’ with ‘some legitimate government purpose.’” See id. at 21 (quoting Heller v. Doe, 509 U.S. 312, 319–20 (1993)). Hellerstedt argues that the regulations serve several valid purposes, including: “evaluating physician competency, ensuring continuity of care, reducing miscommunications between doctors, and preventing patient abandonment.” See Brief for Respondent at 33. With respect to the admitting privileges requirement, Hellerstedt argues that even the National Abortion Federation recommends that abortion providers obtain admitting privileges within twenty miles of an abortion clinic to facilitate transfer to hospitals in the event of a complication. See id. at 37.
SIMILARLY SITUATED OUTPATIENT FACILITIES
Whole Woman’s Health argues that the Texas bill unnecessarily singles out abortion clinics for “heightened medical regulation.” Brief for Petitioner at 41. Whole Woman’s Health argues that Texas law lacks similar requirements for other outpatient physicians, who are permitted to perform routine procedures in their offices without obtaining admitting privileges at nearby hospitals and are not required to practice in an ASC. See id. at 42. This disparity in treatment, according to Whole Woman’s Health, indicates that the law has an impermissible purpose—“to place substantial obstacles in the path of women seeking abortions in Texas.” Id.at 43.
Hellerstedt contends that Whole Woman’s Health’s assertion that the State cannot treat similarly situated outpatient physicians differently lacks support. See Brief for Respondent at 33. Instead, Hellerstedt contends that the State is not required to “reform all of its medical regulations or none at all.” See id. at 43. Further, Texas law does require that outpatient facilities performing certain kinds of surgery register with the State and meet certain minimum safety standards. See id. at 44.
Whole Woman’s Health challenges the Texas law on the grounds that it has the effect of shutting down the operation of the majority of abortion clinics in the State. See Brief for Petitioner at 40. According to Whole Woman’s Health, the effect of a given regulation is strongly indicative of its purpose. See id. at 41. The evidence presented at the district court level showed that obstacles imposed by the legislation on women seeking abortions far outweigh the State’s interest, according to Whole Woman’s Health. See id. at 49. Delays in abortion may lead to increased complications or prevent a woman from having an abortion if she reaches the twenty-week limit provided for under Texas state law. See id.Many women—particularly those with significant financial constraints—will be unable to seek abortion services, because of the long distances that they will now be required to travel as a result of clinic closures. See id. at 49–50. Further, Whole Woman’s Health contends that the Fifth Circuit’s bright-line rule stating that a woman does not face a substantial burden if the clinic is within 150 miles is inconsistent with the Court’s holding in Casey, because it “serve[s] no valid interest” and instead “burden[s] abortion for the sake of burdening abortion.” See id. at 51.
Hellerstedt argues that there is little evidence to suggest that the regulations caused abortion clinics in the State to shut down and suggests that many abortion providers have been able to comply with the law. See Brief for Respondent at 42. In the event that the law did produce substantially harmful effects, Hellerstedt contends that the Court should not presume an unconstitutional legislative intent. Seeid.First, Hellerstedt argues there is no evidence to suggest that travel distances constitute a substantial obstacle to women seeking an abortion, and indeed that the evidence shows that more than ninety percent of women who are of reproductive age live within one hundred and fifty miles of an abortion clinic. See id. at 44–45. To show an undue burden, Hellerstedt argues that Whole Woman’s Health must demonstrate that the undue burden would apply in a “large fraction” of cases, which in this case, Hellerstedt contends it cannot do, because at least one abortion clinic remains open in nearly every large city in Texas. See id. at 45, 48. Hellerstedt further contends that a study relied on by Whole Woman’s Health to suggest that the law creates an undue burden in a large fraction of cases makes factual assertions that were not subject to the adversarial process and thus cannot be considered by the Court. See id. at 49.
Whole Woman’s Health urges the Court to invalidate the Texas law, because it fails to serve a valid state interest warranting the substantial burdens placed on women. See Brief for Petitioner at 54. The law on the whole should be invalidated, Whole Woman’s Health argues, because it will prevent women from obtaining abortion services and cause other clinics to close entirely in a “large fraction of relevant cases.” See id. at 56.
Hellerstedt argues that H.B. 2 cannot be subject to statewide invalidation, because the law contains a strict severability requirement, which requires that any provisions in the regulation that do not cause an undue burden be preserved. See Brief for Respondent at 50–51. Moreover, Hellerstedt contends that each ASC regulation is severable and invalidation of the entire provision is inappropriate. See id. at 52. Many of the ASC provisions aimed at requiring basic respect for patients and medical records remain unchallenged by Whole Woman’s Health, and, as such, the entire ASC provision should not be invalidated. See id. at 52–53.
Whole Woman’s Health contends that the Fifth Circuit erred in barring invalidation of the law based on undue burden on the grounds of res judicata, which prohibits a party from bringing forth claims that have already been litigated or that arise out of the same facts as the claims alleged. See Brief for Petitioner at 57. Specifically, Whole Woman’s Health argues that the facial challenge to the statute is based on new information regarding the statewide effects of the new requirements. See id. at 58. Whole Woman’s Health also disagrees with the Fifth Circuit’s view that it should have challenged the ASC requirement in the Abbottcase, because, although the ASC requirement was passed under the same “omnibus statute” challenged in that case, the ASC requirement was implemented at a later date and through separate implementing legislation. See id. at 59. Thus, Whole Woman’s Health argues that it could not have been aware of the extensive burden that the ASC requirement imposed and it would have been premature to challenge the requirement. See id. at 59–60.
Hellerstedt argues that Whole Woman’s Health’s claims are precluded under res judicata, because they “could have been brought in a prior lawsuit.” See Brief for Respondent at 17–18. According to Hellerstedt, the Fifth Circuit already determined that requiring physicians in abortion clinics to comply with admitting privileges was constitutional, and thus, Whole Woman’s Health cannot raise the issue for the first time on appeal unless new evidence is brought forth. See id. at 17–18. With respect to the claim that the ASC requirement is unconstitutional, Hellerstedt argues that the claims could have been brought in the initial challenge. Id. at 18.
Whole Woman’s Health argues that H.B. 2 imposes an undue burden on women’s access to abortions. SeeBrief for Petitioner, Whole Woman’s Health at 33. Hellerstedt contends that H.B. 2’s justification of improving patient health is supported by substantial evidence, and H.B. 2 will not impose a burden in the majority of cases. See Brief for Respondents, John Hellerstedt, M.D., Commissioner of the Texas Department of State Health Services, et al. (“Hellerstedt”) at 32, 45.
H.B. 2’S EFFECT ON WOMEN’S HEALTH OUTCOMES
The National Physicians Alliance(“NPA”), in support of petitioners, argues that H.B. 2 fails to promote better health care. SeeBrief of Amici Curiae National Physicians Alliance et al. (“NPA”), in Support of Petitioners at 12. The NPA contends that abortion involves minimum complications—for example, the risk of death during childbirth is fourteen times the risk of death during an abortion. See id.at 14. The NPA notes that Texas’s abortion mortality rate is lower than the national average, and that the majority of Texas abortions are performed in clinics rather than ambulatory surgical centers. See id.at 15–16. On a similar note, former Texas State Senator Wendy Davis, in support of petitioners, argues that H.B. 2 fails to resolve any women’s health problems. See Brief of Amici Curiae the Honorable Wendy Davis et al. (“Wendy Davis”), in Support of Petitioners at 5. Davis notes that the there were no abortion related maternal deaths in Texas from 2009–2013. See id.at 7. She also asserts that of the legal abortions performed in Texas in 2013, only five hundredths of one percent of women reported complications. See id.The United States, in support of petitioners, further argues that the admitting privileges requirement and the ASC requirement do not benefit women’s health because in the past, abortions have been performed with minimal complications absent regulations. See Brief of Amici Curiae the United States, in Support of Petitioners at 19, 21.
Rather than helping women’s health, the Institute for Women’s Policy Research (“IWPR”), in support of petitioners, argues that Texas has instituted policies that contribute to Texas women’s poor health. See Brief of Amici Curiae Institute for Women’s Policy Research et al. (“IWPR”), in Support of Petitioners at 14. IWPR argues that Texas women have poor health outcomes and access to healthcare compared to the national average. See id.at 13–14. IWPR contends that Texas’s restrictions on family planning services have negatively impacted women’s health. See id.at 20. More specifically, a group of experts in health policy, in support of petitioners, contends that H.B. 2 requires unnecessarily expensive care, deprives patients of qualified health providers, fails to improve outcomes or quality of care, and makes the patient experience more challenging. See Brief of Amici Curiae Experts in Health Policy, in Support of Petitioners at 18–19.
However, the National Association of Pro Life Nurses (“NAPN”), in support of respondents, contends that H.B. 2 effectively protects against the risks of abortion. See Brief of Amici Curiae of Former Abortion Providers; Post-Abortive Women and their Families, National Association of Pro Life Nurses et al. (“NAPN”), in Support of Respondents at 5. NAPN asserts that women receiving abortions can suffer from a variety of physical complications, including cervical injuries and infections, and psychological consequences. See id.at 14, 17. NAPN contends that H.B. 2’s admitting privileges requirement protects abortion-seeking women because these women receive continuity of care if complications arise. See id.at 28. NAPN also contends that ambulatory surgical centers have high standards for care, outcomes, and safety, which are critical to protect abortion-seeking women from the risks of infection. See id. at 21–23. NAPN concludes that H.B. 2 is necessary to protect women’s health and safety. See id. at 38.
The National Right to Life Committee (“NRLC”), in support of respondents, contends that abortion clinics suffer from poor conditions, and abortion providers are held to low standards. See Brief of Amici Curiae National Right to Life Commission (“NRLC”), in Support of Respondents at 9, 28. The NRLC concludes that the Supreme Court should not act as a “national medical board” by replacing legislatures’ medical judgment with the Court’s medical judgment. See id.at 9.
H.B. 2’S IMPOSED COSTS ON WOMEN SEEKING ABORTION
The National Women’s Law Center (“NWLC”), in support of petitioners, argues that Texas women seeking abortions face significant costs under H.B. 2. See Brief of Amici Curiae National Women’s Law Center and 47 Additional Organizations Committed to Equality and Economic Opportunity for Women (“NWLC”), in Support of Petitioners at 16. The NWLC contends that H.B. 2 will force women to travel long distances to obtain an abortion, which will financially burden poor women reliant on public transportation to travel. Seeid.at 17. The NWLC asserts that women will also have to incur hotel expenses and childcare costs, which will be higher considering the time pressure associated with obtaining an abortion. Seeid.at 17–19. The NWLC notes that women engaged in low-wage work face unpredictable work schedules and risk losing employment if they adjust their schedule to obtain an abortion. See id.at 19. The NWLC concludes that if women cannot obtain abortions due to the burden of long-distance travel, they face health risks, substantial healthcare costs, reduced educational opportunities, and poor economic security. See id.at 27–33.
However, University Faculty for Life, in support of respondents, contends that there is no evidence that H.B. 2’s admitting privileges requirement has prevented women from obtaining abortions. See Brief of Amici Curiae University Faculty for Life and Texas Alliance for Life Trust Fund (“University Faculty for Life”), in Support of Respondents at 22. University Faculty for Life also contends that there is no evidence that any women have suffered substantial obstacles to receiving an abortion after H.B. 2’s passage. See id.University Faculty for Life argues that the petitioners are relying on hearsay, and the district court made no findings of either prevention or substantial obstacles. See id.at 22–23.
In this case, the Court will decide whether the Fifth Circuit erred in failing to consider whether the restrictions placed on abortion providers under H.B. 2 served the legitimate interests of the State to warrant the burdens placed on women seeking abortions. See Brief for Petitioner at i; See Brief for Respondent at i. Whole Woman’s Health argues that the Fifth Circuit failed to balance the State’s interest with the substantial burden placed on women seeking abortions. H.B. 2 will place an undue burden on women’s constitutional right to an abortion by causing the closure of a vast number of abortion clinics in the State. See Brief for Petitioner at 30–31. Hellerstedt, however, argues that H.B. 2 provides for legitimate government regulation to ensure the safety of patients and does not place an undue burden on women seeking abortions.See Brief for Respondent at 16, 45. The Court’s decision implicates the ability of a woman in Texas to seek an abortion, as well as the standard by which courts assess restrictions on abortions. See Brief for Petitioner at 30; see Brief for Respondent at i.
Lindsey Cook and Kimberly Leonard, Explaining Whole Woman’s Health v. Hellerstedt Abortion Case, U.S. News (Jan. 11, 2016).
Emma Green and Matt Ford, A New Supreme Court Challenge: The Erosion of Abortion Access in Texas, The Atlantic (Nov. 13, 2015).
Adam Liptak, Supreme Court to Hear Texas Abortion Law Case, The New York Times (Nov. 13, 2015).