The Supreme Court ended its most recent term with a bang—a ruling in which it struck down a Texas law that imposed special requirements on abortion clinics. The 5-3 opinion in Whole Woman’s Health v. Hellerstedt, written by Justice Breyer, put an end to an era in which many state legislatures have imposed requirements on abortion clinics that threaten their existence. According to the Court, the Texas law, which was typical of laws in other states, simply imposed too significant a burden on women’s access to abortion without any sufficient medical benefits to justify it. Courts across the country will be busy hearing challenges to similar laws, perhaps none of which will withstand judicial review.
The Constitutional Right to Seek an Abortion: From Roe to Casey and Beyond
The history of abortion access in the United States has not been linear. Before the Supreme Court’s 1973 ruling in Roe v. Wade, abortion was largely criminalized by American states. There had been a significant movement to liberalize abortion laws before Roe—one would be hard pressed to identify a social issue on which the Supreme Court has the first word. That movement resulted in abortion bans being repealed or narrowed in about one third of the states during the 1960s and early 1970s. But the remaining states were lurched forward by the opinion in Roe, in which Justice Blackmun declared that the Fourteenth Amendment’s Due Process Clause protected a woman’s right to terminate a pregnancy, at least up to a certain point. Roe embraced the trimester framework, under which states could not regulate abortion during the first trimester; could regulate it only to preserve the mother’s health during the second; and could regulate or restrict it completely, unless abortion was necessary to save the life or health of the woman, during the third trimester because its interest in protecting fetal life becomes compelling when the fetus reaches the point of viability—that is, the point when the fetus could survive outside the womb. This ruling had the obvious effect of invalidating a large number of laws banning or restrictively regulating abortion—or preventing those laws from being applied to certain situations.
Roe was not an end-of-an-era case, however. Opposition persisted, perhaps as a sort of backlash to the Supreme Court’s having jumped ahead of public opinion or perhaps because people continued to disagree about whether abortion should be available on demand, sometimes, or never. It goes without saying that many people’s beliefs on all sides of the abortion issue were and are strongly held. During the 1980s, opposition to Roe and anti-abortion activism were feverish and sometimes violent. In stories that made the national news, one abortion provider was murdered, and another, George Tiller, was subjected to an attempted murder. Although the violence had died down by then, Tiller was eventually murdered in 2009, while serving as an usher during a Sunday church service.
On the constitutional front, the Supreme Court heard many abortion cases in the 1980s in which it curtailed the broad right it had announced in Roe. It upheld a federal law excluding Medicaid coverage for abortion, for example, and a state law disallowing the use of public buildings (e.g., hospitals) for abortion even if the procedure was paid for privately. In one of the few times it moved to support abortion access, Congress enacted the Freedom of Access to Clinic Entrances Act (F.A.C.E.) in 1994, a direct response to an escalating pattern of violence that included other murders, as well as hundreds of assaults, death threats, bombings, and so on. The law permits protesters to assemble, shout, sing, and otherwise express their message of disapproval (thus the “your baby has toenails” shout in the movie Juno, which leads the main character to choose adoption instead of abortion), but it does not permit them to use threats or physical force to impede access to the clinic. The Supreme Court never agreed to hear a challenge to F.A.C.E., and its constitutionality seems clear.
The strand of anti-abortion activism that survived this era, and slowly strengthened, was more peaceful, but just as focused on impeding abortion access. Opponents of legal abortion lobbied, with great success, for state laws restricting abortion. State legislatures began passing laws that were deliberately in tension with, if not outright inconsistent with, Roe. The hope was that a newly composed Supreme Court would simply overturn the ruling—and return the issue of abortion to the states, which had shown increasingly conservative tendencies on the issue.
A challenge to the Pennsylvania Abortion Control Act led to the Supreme Court’s 1992 ruling in Planned Parenthood v. Casey, which, to the surprise and dismay of abortion opponents, reaffirmed the basic principle in Roe that women have a constitutional right to terminate a pregnancy within certain constraints. The plurality in Casey, though, while speaking strongly about the importance of stare decisis—a legal concept that protects reliance by hesitating to overturn settled law—did restructure the framework for analyzing whether government regulation of abortion infringed a woman’s right to seek an abortion or not.
Under the standard announced in Casey, the state’s interest in protecting fetal life attaches at the outset, rather than only when the fetus reaches viability. Before viability, the state can regulate abortion as long as it does not impose an undue burden on a woman’s right to terminate a pregnancy. After viability, the state can restrict abortion entirely as long as it maintains an exception to preserve the life or health of the mother. Applying the new standard, the Court upheld provisions of the law mandating pre-abortion counseling and a waiting period, as well as a provision requiring parental consent for minors (with a judicial bypass option), but struck down a provision requiring married women to notify their husbands before obtaining an abortion.
Casey seemed to put to rest the longstanding question whether the Court would overrule Roe. It had the chance—and the potential votes to do so—but it didn’t. But the question persisted as state legislatures began to pass laws clearly inconsistent with Roe in the hopes of baiting the Court to reconsider the issue yet again. And Casey did provide some fodder for these hopes, even as it reaffirmed the basic holding of Roe. It weakened the basic framework by upholding some restrictions on abortion that might have seemed obviously in tension with Roe. And once the door was ajar, state legislatures came barreling through with restrictions on all ends of the spectrum—clearly invalid, possibly invalid, and clearly valid.
But part of the post-Casey strategy seemed to be pushing the limits. States passed, or attempted to pass, obviously unconstitutional laws, such as an Arkansas bill prohibiting all abortions after twelve weeks of pregnancy that made it through both houses of the state legislature before being vetoed by the governor. North Dakota passed one law to prohibit abortion after a fetal heartbeat becomes detectable, which occurs only four weeks after fertilization, and another to ban abortion of fetuses with severe genetic abnormalities. Unlike in Arkansas, however, the North Dakota governor signed these obviously unconstitutional laws only twenty-four hours after they were presented to him. There is no reason to pass laws that so obviously violate the Roe/Casey standard unless one thinks the Court will reverse itself altogether—or one thinks the rhetorical point carries some weight even if the law can never be enforced. (One interesting thing about these bills is that they are far to the right of public opinion on abortion; a majority of voters support access to abortion always or almost always; many more support it in the first trimester.)
Indirect, Rather than Direct Challenges to Roe/Casey
Somewhere in the mix of anti-abortion politics, a new approach emerged: chip away at Roe/Casey indirectly rather than directly. A dizzying array of laws appeared in a short span of time. Dozens and dozens of abortion restrictions—92 in just the year 2011—made their way into state laws that made it practically more difficult for doctors to provide abortions, and for women to obtain them. Together, these restrictions have driven abortion clinics out of business. In each of four states, only a single clinic remains.
Common abortion-specific rules and restrictions include: (1) abortions must be performed by licensed physicians and in hospitals after a certain point in pregnancy; (2) doctors and hospitals can refuse to perform abortions based on “conscience”; (3) some methods of abortion cannot be used; (4) doctors cannot use “telemedicine” to prescribe medicine necessary to induce early-stage abortions in patients who cannot get to a doctor in person; (5) women must receive mandatory counseling prior to obtaining an abortion with the counseling involving a state-mandated script that the doctor must read, whether he or she agrees with it or not; (6) the woman must wait between 24 and 72 hours, sandwiched between two in-person visits to a clinic before obtaining an abortion; (7) the doctor must report information about abortions to the state; (8) minors must obtain parental consent or the consent of a judge; (9) no federal funding can be used to pay for abortion except in rare cases, and, in most states, no state funding can be used either; (10) abortion facilities must meet the architectural and licensing regulations of hospitals, even though other outpatient facilities are not required to (so-called “TRAP” laws); and (11) abortion providers must have admitting privileges at a local hospital.
TRAP Laws and Whole Woman’s Health v. Hellerstedt
It was the TRAP laws at the end of this list that were at issue in Whole Woman’s Health. Texas had two requirements for abortion clinics that were challenged in this case: abortion providers must have admitting privileges at a hospital within 30 miles of the clinic; and abortion clinics must be built and outfitted like ambulatory surgical centers. Texas defended these requirements on the grounds that it would protect the health of women who undergo abortions.
There were two problems, in the Court’s view, with Texas’s defense of these provisions. First, there was no evidence in the record—a point conceded during oral argument—that a single woman had ever been helped by the requirements. In other words, the ostensible benefit did not exist (and, given the context in which these laws were passed, was most likely pretextual). Second, the laws substantially burdened women’s access to abortion because the requirements forced the closing of a significant number of the state’s abortion clinics.
There’s a genius to TRAP laws—they sound reasonable until more facts are on the table. Justice Breyer relied extensively on the district court’s finding of facts—and the reasonable inferences that could be drawn from them—to understand the challenged laws. The key facts that did in the laws were these: abortion is one of the safest medical procedures around and, to the extent special protections might be authorized, these aren’t the right ones; hospitals by and large do not grant admitting privileges to abortion providers either because they do not support abortion or because abortion providers do not admit a sufficient number of patients to the hospital (because abortions, as noted already, are so safe); and outfitting abortion facilities like surgical centers offers no medical benefit and retrofitting is structurally or cost-wise prohibitive for most clinics. One ironic fact is that childbirth is fourteen times as likely to result in death as abortion, yet Texas licenses midwives to assist with childbirth in the patient’s home.
The admitting-privileges requirement alone led to the closure of half of Texas’s abortion clinics—a fact, the Court noted, that would make abortions less safe as women have to wait longer, be served by fewer doctors, and travel farther from home. With the added burden of the surgical center retrofit, Texas would have only seven or eight abortion facilities left, and none outside of the state’s three largest cities.
On this record, the majority had no trouble concluding that Texas’s requirements “pose a substantial obstacle to women seeking abortions, and constitute an ‘undue burden’ on their constitutional right to do so.”
If opponents were hoping for a reversal of Roe—they got something far from it. The Court reaffirmed its basic abortion rights jurisprudence with one hand and swept dozens of laws to the dustbin of history with the other. And Justice Breyer did so with an opinion that is almost completely devoid of grand pronouncements or rhetorical flourish. He just took the law and applied it to the facts, like we tell law students courts will do.