By Deana A Rohlinger
The Supreme Court’s Whole Woman’s Health v. Hellerstedt ruling effectively renders unconstitutional abortion restrictions in some two-dozen states, forcing abortion opponents to play defense for the first time in decades.
For the first time since the Supreme Court’s landmark Roe v. Wade and Doe v. Bolton rulings established a constitutional right to an abortion in 1973, pro-life advocates find themselves squarely on the losing side of a watershed legal decision.
The high court’s dramatic 5-3 ruling in Whole Woman’s Health v. Hellerstedt upends laws in two-dozen states around the country that have imposed abortion restrictions comparable to those struck by the court on June 27. In a ruling that cemented the importance of its decades-old finding that states may not impose an “undue burden” on women seeking abortions, the Court rejected a Texas law that had mandated that clinics meet the standards of hospitals, and that their personnel have admitting privileges at nearby hospitals.
The Texas requirements had slashed the number of clinics offering abortion in the state by more than half, yet the high court could find “no significant health-related problem that the new law helped to cure” wrote Justice Stephen Breyer in the Court’s majority opinion.
“We agree with the District Court that the surgical-center requirement, like the admitting-privileges requirement, provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an ‘undue burden’ on their constitutional right to do so,” Breyer wrote.
With that, the Court changed the contours of the abortion battle, and dropped pro-life advocates into unfamiliar territory. For decades, the pro-choice movement has been on the defensive and losing ground in the abortion war, particularly as Texas and other states rushed to embrace onerous clinic restrictions known as Targeted Regulation of Abortion Providers (TRAP) laws.
Some have dubbed 2016 the “Year of the TRAP Law,” given the number of state legislatures that imposed increasingly extreme restrictions on clinics. Indiana, for example, passed a law banning abortion in cases of fetal abnormality, and criminalizing the procedure when sought because of the fetus’s sex or race. The new law also holds doctors legally liable for such abortions, requires physicians performing abortions to have admitting privileges at a hospital, limits fetal tissue donation, and makes it a criminal offense to dispose of fetal remains outside of burial or cremation, even if they result from an abortion, miscarriage, or stillbirth.
Similarly, Arkansas and Georgia have enacted fetal burial and cremation laws. Indiana is not the only state to expand restrictions on the types of abortion procedures physicians may perform. This year, four states—Alabama, Louisiana, Mississippi, and West Virginia—banned the abortion procedure known as Dilation and Evacuation, the only surgical procedure regarded as safe after the 14th week. According to Legislative Tracker, 11 other states proposed legislation to ban the D&E procedure. And Utah made news by becoming the first state to require doctors to provide anesthesia to women having an abortion at 20 weeks or later. The bill’s authors based it on the scientifically disputed claim that fetuses feel pain during the procedure.
The Hellerstedt decision throws all of these laws, which until now were presumably constitutional, into jeopardy. Abortion opponents who once had the upper hand are now gearing up for a fight to defend TRAP laws that are now in peril. Officials in the states with stringent abortion restrictions, including Oklahoma, Kansas, Michigan, and Missouri have already begun reviewing the status of their laws in light of theHellerstedt decision. Other state legislators have set about dismantling existing laws. In Pennsylvania, Democratic state senator Daylin Leach has already promised to introduce legislation repealing a 2011 law that tightened medical requirements at abortion clinics.
Pro-choice groups have set out to take advantage of the momentum. NARAL Pro-Choice America immediately launched a campaign to mobilize voters on behalf of Hillary Clinton. In a statement, NARAL announced plans to pull “out all the stops and contact millions of voters through the primary and the general elections in order to make sure reproductive freedom and equality for women are at the top of voters’ minds when they go to the ballot box this November.”
Planned Parenthood plans on facing off pro-lifers in court. On Thursday, Planned Parenthood announced a campaign to repeal abortion restrictions in other states besides Texas. It will begin by challenging states with Texas-style restrictions, including Arizona, Florida, Michigan, Missouri, Pennsylvania, Tennessee, and Virginia. All have admitting privilege or facility infrastructure requirements. Many more campaigns in other states will follow, promised Planned Parenthood Executive Vice President Dawn Laguens in a statement.
Pro-choice groups are preparing for a protracted fight. Dawn Laguens, Planned Parenthood’s executive vice president told The Guardian, “We don’t think for one minute that people who have spent the last decade trying to take away women’s access to abortion … are all of a sudden going to see the light. … But ‘by all means necessary,’ really, is our strategy.”
The Hellerstedt ruling brings renewed clarity to the “undue burden” standard that has long been regarded as the legacy of retired Justice Sandra Day O’Connor’s tenure on the Court. Like many Americans, O’Connor was in the “mushy middle” on abortion; she believed abortion should be legal, and that states should have the ability to put restrictions on its practice. At the same time, she saw limits on how far states could go without violating women’s basic abortion rights.
O’Connor first used the term “undue burden” in her 1983 dissenting opinion in a case known as City of Akron v. Akron Center for Reproductive Health. That decision struck several abortion restrictions, including hospital requirements for abortions performed after the first trimester, 24-hour waiting periods, and parental permission or a judicial bypass for minors under 15. In her opinion, O’Connor specifically referenced two post-Roe rulings that upheld restrictions on the use of Medicaid for abortions that were not considered medically necessary: Maher v. Roe, in 1977, and Harris v. McRae, in 1980. In her dissent, O’Connor argued that the government could take action to prevent abortion that did not “unduly burden” a woman’s ability to obtain the procedure before fetal viability. She explained:
The trimester or “three-stage” approach adopted by the Court in Roe, and, in a modified form, employed by the Court to analyze the regulations in these cases, cannot be supported as a legitimate or useful framework for accommodating the woman’s right and the State’s interests. The decision of the Court today graphically illustrates why the trimester approach is a completely unworkable method of accommodating the conflicting personal rights and compelling state interests that are involved in the abortion context.
By the time the next big abortion case hit the Supreme Court docket in 1989, the tide was turning in favor of O’Connor’s “undue burden” standard. In Webster v. Reproductive Health Services, the Court found that a series of Missouri abortion restrictions did not constitute an “undue burden” on women, but simply relieved the state of the obligation to pay for or play a role in a woman’s abortion decision. The Missouri restrictions had conferred rights on unborn children, prohibited government-employed doctors from aborting a fetus they considered viable, and barred state employees from performing abortions unless the mother’s life was in danger, among other restrictions.
By 1992, “undue burden” was the standard by which the Court measured abortion restrictions. In its landmark Planned Parenthood of Southeastern Pennsylvania v. Casey decision, the Court upheld a state law that required physicians to provide women an “informed consent” booklet, imposed a 24-hour waiting period, and required minors to obtain parental consent—all restrictions that the Court had ruled unconstitutional less than a decade before. The Court explicitly spelled out that states may restrict access to abortion as long as the requirements did not place an “undue burden” on women’s ability to obtain an abortion.
The Webster and Casey decisions sent a clear signal to pro-life advocates. They could push for a range of restrictions that would technically keep abortion legal, but would make it virtually inaccessible within a state.
For the last few decades, pro-lifers have made passing state-level restrictions the cornerstone of their efforts to circumscribe legal abortion in the United States. Their tool of choice has been TRAP laws that choked off abortion access with strict clinic mandates on everything from procedure room to corridor width to hospital admitting privileges to the kinds of procedures abortion providers can perform and where. TRAP laws have forced abortion providers to come up with the money to change (and sometimes relocate) their facilities and acquire particular credentials—or close their doors.
The Hellerstedt ruling effectively robs states of that particular tool—and sets up a pitched battle between advocates on both sides of the abortion issue over what happens to clinics around the country with Texas-style TRAP laws like those that the Court just threw out. It could take years to sort out, but pro-choice advocates now clearly have the upper hand. On Thursday, with thousands of pro-choice proponents gathered in Indianapolis protesting state abortion bans scheduled to go into effect on July 1, federal District Court Judge Tanya Walton Pratt stepped in. Pratt issued an injunction to block Indiana’s ban on abortions motivated by a fetus’s race or sex from taking effect, noting that the limit was “inconsistent with the notion of a right rooted in privacy concerns and a liberty right to make independent decisions.” Other judges in other states are likely to follow a similar course of action. For the first time in decades, abortion rights advocates see the “undue burden” standard as an asset, not an obstacle, to women’s ability to exercise their constitutional right to an abortion.
Deana A. Rohlinger is a professor of sociology at Florida State University and author of Abortion Politics, Mass Media, and Social Movements in America (Cambridge University Press, 2015).