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

Eboni Mosley*

“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.

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