JURIST Guest Columnist Maya Manian of the University of San Francisco School of Law discusses the history of abortion laws, and how Whole Woman’s Health has impacted women’s constitutional right to access abortion care…

As numerous commentators have noted, the Supreme Court’s 5-to-3 decision in Whole Woman’s Health v. Hellerstedt [PDF] was a resounding victory for abortion rights, reaffirming and strengthening women’s constitutional right to access abortion care. Justice Breyer’s wonky opinion in Whole Woman’s Health not only soundly rejected Texas’ attempt to shut down abortion clinics under the guise of protecting women’s health, but also laid the groundwork for challenging a wide range of abortion restrictions.

Whole Woman’s Health involved a challenge to a Texas law that required abortion clinics to transform themselves into mini-hospitals pursuant to ambulatory surgical center (ASC) rules and abortion providers to obtain admitting privileges at a local hospital. A number of other states have passed similar legislation, known as “TRAP” laws because the goal of this “targeted regulation of abortion providers” is to close clinics. Had the Supreme Court upheld the Texas law, the number of abortion clinics in Texas could have dropped from over 40 to about 10, effectively leaving thousands of women in rural areas without access to abortion care.

More broadly, in determining whether or not admitting privileges and surgical center requirements are constitutional, the court clarified the constitutional test for abortion rights established almost twenty-five years ago in Planned Parenthood v. Casey. Although Casey allowed states more leeway to regulate abortion than Roe v. Wade, the decision still protected women’s constitutional right to choose abortion by prohibiting any abortion restrictions that act as an “undue burden” on a woman’s right to access abortion care. Casey defined an “undue burden” as a law that has the “purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion.”

However, federal courts disagreed on how the undue burden test should be applied. The Fifth Circuit upheld [PDF] the Texas law, weakening the undue burden standard in two ways. First, the Fifth Circuit held that the undue burden test places an extremely heavy burden on challengers to prove that an abortion restriction amounts to a “substantial obstacle.” Second, while the challengers bore a heavy evidentiary burden to establish a substantial obstacle, in contrast the government bore almost no evidentiary burden [PDF] to show that the law actually serves the asserted state interest in protecting women’s health. Other courts read the undue burden test as providing more meaningful protection for abortion access, recognizing the real burdens TRAP laws created, and demanding that the government offer more than its say so that its legal restrictions actually improved women’s health. For example, Judge Richard Posner struck down Wisconsin’s admitting privileges law in his Seventh Circuit opinion, stating: “Until and unless Roe v. Wade is overruled by the Supreme Court, a statute likely to restrict access to abortion with no offsetting medical benefit cannot be held to be within the enacting state’s constitutional authority.”

In Whole Woman’s Health, Justice Breyer’s opinion smacked down the Fifth Circuit’s approach to the undue burden test. The opinion clarified that the undue burden test actually requires the government to justify its law and requires courts to balance a law’s burdens on abortion access against its benefits. Justice Breyer stated that the Fifth Circuit’s interpretation of the undue burden doctrine contradicted Casey, which “requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.” Justice Breyer’s analysis also demonstrated that courts must carefully canvas the empirical evidence on both the benefits and burdens of an abortion regulation. Rather than deferring to a state legislature’s unsupported assertion that an abortion restriction protects women’s health, the majority opinion stressed that the “Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake.” (Interestingly, Justice Breyer took this quote from Gonzales v. Carhart, which upheld the federal “partial-birth” abortion ban). Justice Breyer concluded: “[N]either of these [Texas] provisions offers medical benefits sufficient to justify the burdens upon access that each imposes. Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, and each violates the federal Constitution.” In a brief concurrence, Justice Ginsburg wrote that it “is beyond rational belief that [the Texas law] could genuinely protect the health of women.”

In mere weeks since the decision, Whole Woman’s Health has already had a significant impact on abortion access. Shorty after the ruling, Alabama’s attorney general declared that he would not appeal a 2014 federal court decision striking down the state’s admitting privilege requirement. The Supreme Court declined to review challenges to federal appeals court decisions striking down Wisconsin’s and Mississippi’s admitting privileges legislation. Recently, a federal district court judge blocked an Indiana law banning abortions based on fetal genetic abnormality.

With many more legal challenges expected, the full impact of Whole Woman’s Health remains to be seen. While the case clearly signals the death knell for admitting privileges requirements (and likely the end of surgical center regulations and other types of TRAP laws), a wide range of burdensome abortion restrictions remain in place, though thanks to Whole Woman’s Health, perhaps not for long. Whole Woman’s Health‘s clarification of the undue burden balancing test and its emphasis on evidence-based analysis puts at risk many abortion restrictions that purport to protect women’s health.

For example, a number of states require biased so-called “informed consent” procedures for abortion patients, in-person consultation with a physician twenty-four hours prior to abortion care (or in a few states forty-eight or seventy-two hour waiting periods), and mandatory descriptions of ultrasounds [PDF]—all in the name of “protecting” women. However, given the minimal to non-existent evidence that inaccurate medical information, in-person consultations necessitating two trips to a clinic, more than twenty-four hour waiting periods, or forced descriptions of ultrasounds actually benefit women’s informed decision-making, versus the significant evidence that these requirements impose substantial burdens on women seeking abortion care, these laws too should fail under Whole Woman’s Health.

Perhaps courts might even reassess laws requiring that teenage girls seeking abortion care obtain parental consent or a judicial bypass [PDF]. The Alaska Supreme Court recently struck down a state parental involvement law based on the state constitution’s equal protection jurisprudence. Although the US Supreme Court has upheld parental involvement legislation in the past, more recent evidence suggests that these laws fail to achieve their purported goal of enhancing adolescent abortion decision-making, while imposing heavy burdens especially on the most vulnerable minors. Whole Woman’s Health‘s emphasis on the need for the government to present scientific data supporting an abortion restriction’s asserted benefits should prompt a rethinking of laws mandating parental or judicial involvement, especially when less restrictive alternatives like involving third-party adults or professional counselors are available.

It is less certain how Whole Woman’s Health will impact anti-abortion legislation that purports to advance the government’s interest in protecting the fetus, but these laws too should be subject to the stringent analysis set forth by the Supreme Court. For example, some anti-abortion activists are aiming to focus on fetal protection laws post-Whole Woman’s Health, and in particular on “fetal pain” laws banning abortion at twenty weeks post-fertilization. Fifteen states have adopted laws barring pre-viability abortions at twenty weeks based on the assertion that a fetus can feel pain at that point. Given that this assertion is scientifically dubious, and that a complete ban on pre-viability abortion is clearly a substantial obstacle, under the Court’s balancing test twenty-week bans should be struck down.

A more recent effort to regulate abortion purportedly to protect the dignity of the fetus arose out of Texas, where regulators quietly issued a proposed rule requiring fetal tissue to be buried or cremated rather than disposed of similarly to other medical tissue. This new line of attack appears to be aimed at increasing costs associated with abortion, which could create significant burdens for some women seeking access to care. Although whether such a law actually serves the government’s interest in the fetus is harder to assess empirically, if evidence can establish that the the law imposes a substantial obstacle, such regulations should be struck down under Whole Woman’s Health‘s balancing analysis.

Whole Woman’s Health stayed true to the principles expressed in Planned Parenthood v. Casey. Courts and state legislatures should heed the Supreme Court’s command that abortion policy must be evidence-based. Laws that purport to protect women’s health must actually accomplish that goal, rather than being a cover for attacking women’s health by shutting down access to abortion care. Furthermore, laws purportedly serving the government’s interest in protecting the fetus must also be scientifically sound and properly weighed against women’s right to access abortion care prior to viability. As Casey emphasized, “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” The constitution requires that the government also respect and protect women’s equality and dignity in accessing reproductive health care.

Professor Maya Manian of the University of San Francisco School of Law focuses her research on access to reproductive health care and explores the relationship between reproductive rights and gender equality. She publishes and presents widely on abortion rights and related constitutional issues. She previously served as a Blackmun Fellowship Attorney at the Center for Reproductive Rights in New York City, where she was a visiting scholar for a series of events during the 2011-2012 academic year. Professor Manian received her undergraduate degree from the University of Michigan and her law degree magna cum laude from Harvard Law School, where she served on the Harvard Law Review.

Suggested citation: Maya Manian, Protecting Abortion Rights After Whole Woman’s Health , JURIST – Forum, Aug 16, 2016, http://jurist.org/forum/2016/08/Maya-Manian-Protecting-Rights.php.