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

On March 2, 2016, the Supreme Court heard oral argument in 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, and that stay currently remains in place pending issuance of the written judgment of the Supreme Court. Thus, the district court’s original injunctions against the Texas law remain in effect for now. There are two questions before the Supreme Court: (1) Whether, when applying the “undue burden” standard of Planned Parenthood v. Casey, a court errs by refusing to consider whether and to what extent laws that restrict abortion for the stated purpose of promoting health actually serve the government’s interest in promoting health; and (2) whether the Fifth Circuit erred in concluding that this standard permits Texas to enforce, in nearly all circumstances, laws that would (according to petitioners) cause a significant reduction in the availability of abortion services while failing to advance the State’s interest in promoting health - or any other valid interest. To discuss the case, we have Roger Severino who is Director, DeVos Center for Religion and Civil Society at The Heritage Foundation.