Whole Woman’s Health v. Hellerstedt is the most monumental abortion rights decision in decades. In time, it may prove to be nearly as significant to a rising generation of American women as Roe v. Wade was to their mothers and grandmothers.
In a 5-3 decision authored by Stephen Breyer, the Supreme Court ruled that a Texas abortion restriction passed in 2013 “places a substantial obstacle in the path of women seeking a previability abortion” and that it “constitutes an undue burden on abortion access.” Accordingly, the Texas law was found to be unconstitutional.
The Texas law, HB 2, required abortion providers to meet the same standards as ambulatory surgical centers and to have admitting privileges at a hospital within 30 miles. The law has been stuck in legal limbo since Gov. Rick Perry signed it in 2013, ultimately getting appealed all the way up to the Supreme Court.
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Over half of Texas' abortion clinics have already closed since HB 2. If the Court had tied 4-4, or ruled in favor of the Texas law, as many as ten of the state’s remaining 19 abortion clinics could have been forced to close as well, according to the Center for Reproductive Rights. Now, they will stay open.
But Whole Woman’s Health has consequences that stretch far beyond the Lone Star State. Most importantly, it will give abortion-rights advocates even more authority to argue that a recent deluge of state-level abortion restrictions are unconstitutional.
According to the Guttmacher Institute, more than one-quarter of all state-level abortion restrictions since Roe have been passed in the last five years, increasing in pace since the GOP gained control over more governorships and state legislatures in the 2010 midterm elections. These laws have regulated everything from how long women must wait before an abortion to when women can receive an abortion to the width of abortion clinic hallways, prompting exasperated abortion rights advocates to ask: What good is legal abortion if access to it is severely restricted?
These restrictions were passed under the guise of protecting “women’s health” after the Court ruled in 1992’s Planned Parenthood v. Casey that lawmakers could not place an “undue burden” on women seeking an abortion before fetal viability, generally considered to take place around 24 weeks. That decision was intended to prevent abortion opponents from passing laws with the express intent of closing clinics or restricting access without a health-based justification. But for the past six years especially, anti-abortion lawmakers have been stretching the meaning of the term “undue” with an unprecedented wave of restrictive legislation.
The fight over abortion restrictions came to a head in Texas after HB 2 forced many abortion providers to close and temporarily left women in the Rio Grande Valley without a clinic closer than San Antonio, which is hundreds of miles away. After appeal, the Fifth Circuit upheld HB 2 but also allowed Whole Woman's Health in McAllen, Texas to remain open and serve the Valley pending today's Supreme Court decision.
In a statement Monday morning, Amy Hagstrom Miller, president of Whole Woman's Health, said, "Today, justice was served."
The McAllen clinic and other survived because the Court, citing medical experts, rejected arguments that HB 2's restrictions were necessary to protect women in the event of abortion complications.
“Texas argues that HB 2’s restrictions are constitutional because they protect the health of women who experience complications from abortions,” Justice Ruth Bader Ginsburg wrote in a withering concurrence opinion. “In truth, ‘complications from an abortion are both rare and rarely dangerous.’”
Ginsburg further argued that it was "beyond rational belief" for abortion opponents to suggest that HB 2 was meant to help women.
Texas Attorney General Ken Paxton still maintains that belief. In a statement, he called the decision "exceedingly unfortunate," saying that the Court had taken away the state's "ability to protect women's health."
Monday’s decision could have direct consequences not just for Texas but for dozens of other states. According to the Guttmacher Institute, 22 states require abortion clinics to meet the same standards as ambulatory surgical centers; 10 states require clinics to be within a certain distance of a hospital; five require abortion providers to have admitting privileges at a hospital — privileges that hospitals are not always willing to bestow given the controversy surrounding abortion.
The 5-3 ruling does not automatically roll back these restrictions, but abortion rights advocates will now be able to challenge them with a much greater chance of success. They are celebrating today’s ruling not just as a victory for Texas, but for all women.
EMILY’s List president Stephanie Schriock called the ruling “a victory for women everywhere, reaffirming our right to make our own reproductive health care decisions no matter where we live.”
“We are thrilled that these dangerous provisions have been struck down,” said Planned Parenthood Federation of America President Cecile Richards in a statement. “This is a win for women.”
And NARAL Pro-Choice America President Ilyse Hogue said, “The Supreme Court has powerfully reaffirmed a woman’s constitutional right to make her own decisions about her health, family, and future, no matter her zip code.”
Moving forward, we can expect abortion rights advocates to issue swift challenges to myriad other abortion restrictions nationwide. In a statement issued minutes after the ruling, National Abortion Federation president Vicki Saporta promised as much.
“While this decision will help with the barriers in Texas and gives a solid precedent to strike down similar laws in other states as unconstitutional, there are still many politically-motivated, medically-unnecessary barriers to accessing abortion care throughout the U.S.,” she said. “We will celebrate this win for evidence-based medical care today, but we will continue working with our members in Texas and across the U.S. to ensure that women can access the abortion care they need.”
