Whole Woman's Health v. Hellerstedt - Post-Decision SCOTUScast

On June 27, 2016, the Supreme Court decided Whole Woman's Health v. Hellerstedt. Whole Woman’s Health and other Texas abortion providers sued Texas officials seeking declaratory and injunctive relief against a state law requiring that physicians who perform abortions have admitting privileges at a hospital within thirty miles of the location where the abortion is performed, and requiring that abortion facilities satisfy the standards set for ambulatory surgical centers (“ASC”s). The district court enjoined enforcement of both requirements “as applied to all women seeking a previability abortion,” and as applied to abortion facilities in McAllen and El Paso, but dismissed claims that the law violated equal protection and effected an unlawful delegation. 

The U.S. Court of Appeals for the Fifth Circuit affirmed dismissal of the equal protection and unlawful delegation claims, and affirmed but modified the injunction of the ASC and admitting privileges requirements as applied to the McAllen facility. The Court vacated the district court’s injunction of the admitting privileges requirement as applied to “all women seeking a previability abortion,” however, and reversed the injunction of the ASC requirement on its face (and in the context of medication abortion), as well as the injunction of the admitting privileges and ASC requirements as applied to the El Paso facility. As a result, the Texas law was to remain in effect statewide--except for the ASC requirement as applied to the Whole Woman’s Health abortion facility in McAllen, and the admitting privileges requirement as applied to a particular doctor when working at the McAllen facility. The U.S. Supreme Court, however, stayed issuance of the mandate on the Fifth Circuit’s judgment, ultimately reversing that judgment by a vote of 5-3 and remanding the case.

Justice Breyer delivered the opinion of the Court, holding that petitioners’ constitutional claims were not barred by res judicata, and that both the admitting-privileges and the ambulatory surgical-center requirements placed a substantial obstacle in the path of women seeking a previability abortion, constituted an undue burden on abortion access, and violated the Constitution. Justice Breyer’s majority opinion was joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justice Ginsburg filed a concurring opinion. Justice Thomas filed a dissenting opinion. Justice Alito filed a dissenting opinion, in which Chief Justice Roberts and Justice Thomas joined.

To discuss the case, we have Roger Severino, who is Director, DeVos Center for Religion and Civil Society at The Heritage Foundation.

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