Preventing Undue Burden on a Woman’s Right to Abortion: The Recent U.S. Supreme Court Decision that Echoes Legal Theories in Roe v. Wade
“Reproductive freedom is critical to a whole range of issues. If we can’t take charge of this most personal aspect of our lives, we can’t take care of anything. It should not be seen as a privilege or as a benefit, but a fundamental human right.”
– Faye Wattleton (first African-American and youngest person to be elected president of Planned Parenthood Federation of America)
On June 26, 2016, the U.S. Supreme Court invalidated two provisions of Texas House Bill 2 because both unjustifiably made it more difficult for women within that state to get an abortion. Whole Women’s Health v. Hellerstedt, 136 S. Ct. 2292, 2300 (2016); see also H.B. 2, 83d Leg., 2d Spec. Sess. (Tex. 2013). The first provision provides: “A physician performing or inducing an abortion . . . must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that . . . is located not further than 30 miles from the location at which the abortion is performed or induced.” Hellerstedt, 136 S. Ct at 2300; H.B. 2 § 2 (codified at Tex. Health & Safety Code § 171.0031). The second provision provides: “[T]he minimum standards for an abortion facility must be equivalent to the minimum standards adopted under [the Texas Health and Safety Code section] for ambulatory surgical centers.” Hellerstedt, 136 S. Ct at 2300; H.B. 2 § 8 (codified at Tex. Health & Safety Code § 245.010(a)). In brief, the first provision makes it more challenging for doctors to qualify to perform abortions. The second provision, essentially, regulates abortion clinics as strictly as hospitals. Hellerstedt serves as a pivotal reminder to state legislatures that women’s access to abortion services cannot be unjustifiably restricted.
The landmark decision that granted women the right to have an abortion was Roe v. Wade, 410 U.S. 113 (1973). In Roe, the Court held that the constitutional right of privacy extends to women deciding whether or not to abort their pregnancies. Id. at 151. The right of privacy may be found in the Fourteenth Amendment’s Due Process Clause or the Ninth Amendment’s reservation of rights to individuals. Id. Roughly twenty years later, in Planned Parenthood of Southeastern Pennsylvania. v. Casey, 505 U.S. 833, 878 (1992), the Court sought to protect the “central right” recognized in Roe by using the “undue burden analysis” to determine whether to invalidate a state law that was restricting women’s rights to have an abortion. There is an undue burden that makes the law-in-question invalid, “if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Id.
In a series of cases, the U.S. Court of Appeals for the Fifth Circuit reversed the U.S. District Court for the Western District of Texas, which held that the admitting-privileges and surgical-center requirements were unconstitutional. The court of appeals gave more deference to the state legislature by holding that “‘the district court erred by substituting its own judgment for that of the legislature’ when it conducted its ‘undue burden inquiry,’ in part because ‘medical uncertainty underlying a statute is for resolution by legislatures, not the courts.’” Hellerstedt, 136 S. Ct. at 2309 (quoting Whole Women’s Health v. Cole, 790 F.3d 563, 572 (5th Cir. 2015)).
In Hellerstedt, the Court reviewed the district court’s application of the undue burden analysis to determine whether it correctly held that the admitting-privileges requirement was unconstitutional. The district court found that the promulgation of the first provision caused many abortion clinics to close throughout Texas. See id. at 2301 (quoting Whole Women’s Health v. Lakey, 46 F. Supp. 3d 673, 681 (W.D. Tex. 2014) (“Prior to the enactment of H.B. 2, there were more than 40 licensed abortion facilities in Texas, which ‘number dropped by almost half leading up to and in the wake of enforcement of the admitting-privileges requirement that went into effect in late-October 2013.’”)). Some admitting-privileges requirements did not pertain to the ability to perform medical procedures. See id. at 2312 (explaining that a veteran obstetrics and gynecology doctor was refused admitting privileges at all seven hospitals within thirty miles of his clinic for reasons “not based on clinical competence consideration”). Even though the reasoning behind that provision was for patients to have access to a hospital in case a serious complication arose during the abortion, this emergency was extremely rare. See id. (“[D]uring the past 10 years, over 17,000 abortion procedures were performed at the El Paso [clinic], and none of those patients needed to be transferred to a hospital.”).
The Court also reviewed the district court’s application of the undue burden analysis to the surgical-center requirement, which was found unconstitutional. The potential expense of complying with the second provision also caused many abortion clinics to close. Id. at 2302–03. Some of the compliance requirements pertained to the qualifications and number of registered nurses employed at the clinics and dimensions of the facilities. Id. at 2314–15. Making these changes could cost existing clinics close to $1 million. Id. at 2302. Furthermore, the expense of “acquiring land and constructing a new compliant clinic” would most likely exceed $3 million. Id. at 2303. The seven or eight remaining clinics would be forced to meet the abortion demands of Texas. Id. at 2302.
The massive number of clinical closings would drastically impact women’s accessibility to abortion services. For starters, there might be overcrowding at the few remaining clinics. See id. (finding that “it is foreseeable that over 1,200 women per month could be vying for counseling, appointments, and follow-up visits at some of these facilities . . . . The suggestion that these seven or eight providers could meet the demand of the entire state stretches credulity”). In addition, more women would live much further away from abortion clinics, which would increase travel time. See id. (finding that “‘the decrease in geographical distribution of abortion facilities has meant that the number of women of reproductive age living more than 50 miles from a clinic has doubled (from 800,000 to over 1.6 million)’” (quoting Whole Women’s Health v. Lakey, 46 F. Supp. 3d 673, 681–82 (W.D. Tex. 2014))). Furthermore, poor women were experiencing the brunt of these two provisions. See id. (“The ‘two requirements erect a particularly high barrier for poor, rural, or disadvantaged women.’” (quoting Lakey, 46 F. Supp. 3d at 683)).
Following the review of the district court’s undue burden analysis, the Court upheld that the two provisions were unconstitutional because they unjustifiably restricted women’s access to abortion services. Id. at 2320. The Court reversed the judgment of the court of appeals, and the case was remanded for further proceedings consistent with this judgment. Id.
In his dissenting opinion, Justice Thomas found that the majority opinion gave unprecedented deference to abortion rights by reconstructing the Casey undue burden test in three ways. First, the majority opinion requires courts to simultaneously consider the burdens and benefits of the law-in-question. Id. at 2324 (Thomas, J., dissenting). Second, when a law has medical uncertainties, courts should not give deference to the legislature but, instead, should analyze the records to determine whether the law is medically justified. Id. Third, even if the law does not impose a “substantial obstacle” to receiving abortion services, the law must have more than a reasonable relation to a legitimate state interest. Id. Justice Thomas argued that none of these principles are found in Casey or its subsequent citing decisions. Id. In another dissenting opinion, Chief Justice Roberts and Justice Thomas joined Justice Alito regarding the lack of neutrality and judicial discretion within the majority opinion. Id. (Alito, J., dissenting).
There was an explosion of commentary on social media regarding the Court’s ruling. In response to the decision, The Daily Show tweeted, “Celebrate the #SCOTUS ruling! Go knock someone up in Texas!” ‘Daily Show’ Explains Controversial Tweet on Texas Abortion Ruling, Fox News: Ent. (June 28, 2016), http://www.foxnews.com/entertainment/2016/06/28/daily-show-explains-controversial-tweet-on-texas-abortion-ruling.html. Rightfully, the insensitive comment received a large amount of backlash from readers. Id. One reader responded, “This is offensive and completely misses the point. Delete the tweet and fire whoever wrote it.” Id. The Daily Show later tweeted, “Friends, we’re certainly not promoting abortions. Just excited about #SCOTUS reaffirming right to choose.” Id.
Should the Court’s decision be perceived as safeguarding the fundamental right to privacy or as bulldozing the state legislature’s use of judgment in increasing the standard of abortion providers and clinics? The tug-of-war between protecting and restricting individuals’ right to privacy—in particular the right to an abortion—will most likely continue beyond Roe, Casey, and the most recent case of Hellerstedt. However, the Court in Hellerstedt confirmed that it has the power to scrutinize a law by engaging in a close economical, statistical, geographical, and social analysis to determine whether the law creates an undue burden to women seeking abortion services.
 “[N]or shall any state deprive any person of life, liberty, or property, without due process of law . . . .” U.S. Const. amend. XIV, § 1.
 “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” U.S. Const. amend. IX.
* Eboni Mosley is a second-year law student at the University of Baltimore School of Law, where she serves as a staff editor for Law Review, teaching assistant for the Introduction to Lawyering Skills/Civil Procedure class taught to first-year law students, and Legal Writing Fellow for the Legal Writing Center. Mosley has interned for the Baltimore City State’s Attorney’s Office, and, this past summer, served as a 1L summer fellow at Ballard Spahr, LLP, and PNC Financial Services Group. She will return to Ballard Spahr as a summer associate during the summer of 2017.