Whole Woman’s Health v. Hellerstedt: Freeing Women from TRAP Regulations
On Monday, the Supreme Court issued its first major abortion case in 15 years. Justice Breyer’s majority decision in Whole Woman’s Health v. Hellerstedt provides much needed clarification of the undue burden standard the Court applies in abortion cases and deals a serious, and perhaps fatal, blow to TRAP laws, which have increasingly been used by the anti-choice movement to restrict women’s access to abortion.
At issue in the case were two provisions of a 2013 Texas law. The first required that any physician performing an abortion have admitting privileges at a hospital within 30 miles from the location where the abortion is performed. The second required that abortion clinics meet the standards required for ambulatory surgical centers (ASCs). At oral argument in March, Justices Breyer, Ginsburg, Sotomayor and Kagan repeatedly questioned the need and purpose of the provisions, which Texas does not require for other medical treatments, even those that are significantly more dangerous, like colonoscopy which has 28 times the complication rate of abortion.Despite their dubious medical benefit, if allowed to go into effect the two provisions would have substantial impact on abortion provision, collectively reducing the number of abortion clinics in the state from more than 40 to seven or eight.
Since the 1992 case, Planned Parenthood v. Casey introduced the undue burden standard, lower courts have struggled to apply it. The standard prohibits laws that have the “purpose or effect” of placing “a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Because the undue burden standard was perceived as weakening constitutional protection for abortion rights recognized in Roe v. Wade, after Casey state laws restricting abortion proliferated. From 2010 to 2015, states passed over 288 abortion restrictions. In recent years, TRAP laws (targeted regulation of abortion providers), like Texas’ admitting privileges and ASC requirements, have been particularly popular among anti-choice state legislators. TRAP laws are health regulations that only apply to abortion providers. Typically their health benefits are questionable (indeed there is a strong argument that the provisions challenged in Texas actually harmed women’s health). By imposing requirements that are expensive or extremely difficult to comply with, TRAP laws are a brutally effective means to force clinics to close or restrict services.
In some ways, it is surprising that states have been able to pass TRAP laws. Although the Court has long recognized that the state has a legitimate interest in ensuring that abortions - like all other medical procedures - are safe, in Casey, the Court specifically stated that “[u]necessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.” The question in Whole Woman’s Health was whether courts must turn a blind eye to the medical benefits (or lack there of) of abortion regulations when states claim they are health regulations. Justice Breyer resoundingly rejected that argument emphasizing that “uncritical deference” to legislative factual finding is inappropriate when reviewing restrictions on abortion, which is a “constitutionally protected liberty.” He also clarified that consideration of the benefits of a statute is a crucial part of the undue burden standard. Indeed, “the rule announced in Casey . . . requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.” Applying that standard to the two Texas provisions, Justice Breyer found thatneither of these 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 concurring opinion, Justice Ginsburg made clear her view that TRAP laws are unconstitutional, stating that “Targeted Regulation of Abortion Providers laws like H.B.2 that ‘do little or nothing for health, but rather strew impediments to abortion’ . . . cannot survive judicial inspection.” Although Justice Breyer did not go as far as Justice Ginsburg, the undue burden standard articulated in his decision will make it extremely difficult for TRAP laws to withstand constitutional scrutiny. And because the opinion engaged in a detailed analysis of the impact of the Texas provisions and concluded that the admitting privileges and ASC requirements do not benefit patients and fail to advance a legitimate state interest in protecting women’s health, it will make it particularly difficult, if not impossible, for states to defend current ASC and admitting privilege requirements or pass new ones.