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Academic highlight: Greenhouse and Siegel on the right to abortion after Whole Woman’s Health

How closely should courts scrutinize the purpose and effect of state legislation regulating abortion? Linda Greenhouse and Reva Siegel addressed that issue at length in an article published shortly before the Supreme Court struck down a Texas statute regulating abortion in Whole Woman’s Health v. Hellerstedt. Now that the court has spoken, they have written a follow-up essay explaining that the decision could “reshape the abortion conflict” by changing the way courts balance the benefits and burdens of state laws regulating abortion. Most significantly, they argue that the court’s decision casts constitutional doubt on a host of other types of abortion regulation, such as laws prohibiting the use of telemedicine for non-surgical abortions and laws requiring abortion providers to give state inspectors access to patient records.

Whole Woman’s Health involved a Texas law requiring doctors at abortion clinics to have admitting privileges at local hospitals, and mandating that abortion clinics meet the standards for ambulatory surgical centers. Although Texas claimed that the new regulations were intended to protect women’s health, the difficulty and expense of complying with the requirements caused many of the state’s abortion clinics to close.

As Greenhouse and Siegel explain, the Texas laws were part of a larger legislative strategy by opponents of abortion. After the Supreme Court’s decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, abortion opponents sought to enact state laws making abortions more difficult to obtain. Some of these laws were intended to dissuade women from having abortions, by, for example, requiring waiting periods, spousal approval, and parental consent for minors. Others, such as the Texas law at issue in Whole Woman’s Health, created regulatory obstacles for abortion providers in the name of protecting women’s health. Critics labeled the latter type of legislation “TRAP laws” — Targeted Regulation of Abortion Providers — because they imposed more regulations on abortions than on other procedures posing similar or greater medical risks.

In cases challenging TRAP laws, lower courts were divided about whether they should scrutinize the scientific evidence regarding the health benefits of such laws, and whether they could take into account the effects of these laws on access to abortion. For example, in Whole Woman’s Health, the district court struck down the Texas statute after gathering evidence about the minimal risks associated with abortions in Texas prior to the legislation, as well as the law’s impact on existing clinics. But the U.S. Court of Appeals for the 5th Circuit reversed after concluding that the “first-step in the analysis of an abortion regulation … is rational basis review, not empirical basis review,” and declaring that courts should “not balance the wisdom or effectiveness of a law against the burdens the law imposes.” Whole Woman’s Health settled the debate. The majority declared that the court has “an independent constitutional duty to review factual findings where constitutional rights are at stake.” It then struck down the Texas law after examining the health benefits of the regulations and comparing them to burdens the laws imposed on access to abortion in Texas.

Greenhouse and Siegel argue that Whole Woman’s Health is important not only because the court refused to defer to Texas’ claim that the law protected women’s health, but also because the ruling redefined the factors courts can look at when balancing the benefits and burdens of abortion regulations. For example, the majority opinion observed that because the law would force most Texas abortion clinics to shut down, it would require women seeking abortions to travel long distances to undergo the procedures in overcrowded medical facilities — conditions that would only increase the health risks of obtaining abortions, and thus undermine the legislation’s claimed purpose. In other words, the court was willing to look at how the regulations would as a practical matter affect the availability and safety of abortions. Greenhouse and Siegel conclude that the approach adopted in Whole Woman’s Health raises questions about the constitutionality of other state laws regulating abortion, such as those prohibiting the use of telemedicine for non-surgical abortions and requiring abortion providers to give state inspectors access to patient records.

In 2015, an official with Americans United for Life declared:  “States can’t outlaw abortion . . . [but] [t]hat does not mean there’s a constitutional right to abortion being convenient.” Greenhouse and Siegel disagree, and argue that after Whole Woman’s Health, laws making abortions harder to obtain for no good reason are as unconstitutional as laws that ban abortion altogether.

Recommended Citation: Amanda Frost, Academic highlight: Greenhouse and Siegel on the right to abortion after Whole Woman’s Health, SCOTUSblog (Sep. 30, 2016, 10:38 AM),