Whole Woman’s Health v. Cole: What’s Next for Abortion Rights?

By Ajla Glavasevic | December 3, 2015

Women have, for centuries, been fighting a battle to obtain equal rights and autonomy within the patriarchal society in which we live. From voting rights, equal pay, gender equality, and financial independence to stigmatized domestic violence ideologies and highly controversial contraceptive and reproductive rights, women continue to strive toward a gender equilibrium.

While their history is bountiful, reproductive rights–specifically those focused on abortion–have morphed from a religious, hot-button voting issue and politically polarizing topic of interest into a women’s rights and equality war zone, which has mixed reviews even from within. For years, various states have been testing the limitations of abortion laws by trying to implement restrictions to access, mandatory and burdensome requirements, and regulations upon women and healthcare providers. Most have not passed muster, however, in early November 2015, the Supreme Court agreed to hear a major and consequential abortion rights case for the first time since 2007. Read on to learn more about the history of abortion rights, the important facts of Whole Women’s Health v. Cole, and what it could mean for future generations of women.

---

A “Brief” History of Abortion Rights

Laws pertaining to contraception came to the Supreme Court in 1965 with Griswold v. Connecticut, where the court found that a state statute forbidding the use of contraceptives, punishable by fine and imprisonment, was unconstitutional. Justice William O. Douglas crafted the “penumbra” argument, stating that, “…the First Amendment has a penumbra where privacy is protected from government intrusion,” finding that “the sacred precincts of marital bedrooms” is not a place that is subject to government control and infringement. Marital privacy was to remain private. The curtain would remained closed on the intimacies of married life.

In 1973, the Supreme Court decided the landmark abortion case, Roe v. Wade. Justice Harry Blackmun, a conservative father to three daughters who served as resident counsel in the Mayo Clinic (1950-1959), authored the weighty opinion. The importance of the right to privacy and a woman’s autonomy over her pregnancy led him and the Court to find the restrictive Texas statute unconstitutional and abortion a private legal matter encompassing a woman’s right to choose. The Court quoted the Texas District Court below, agreeing that the “fundamental right of single women and married persons to choose whether to have children is protected by the Ninth Amendment, through the Fourteenth Amendment.” However, the opinion explained vested interests in abortion proceedings and outlined different levels of state interests in regulating abortion procedures in the second and third trimester.

While 1992 brought United States citizens “Aladdin,” Windows 3.1, and the birth of Miley Cyrus, it also bestowed upon us the sequel to Roe v. Wade in the form of Planned Parenthood of Southeastern Pennsylvania v. Casey—a complex multi-part decision that ultimately addressed what regulations were and were not acceptable by the states regarding abortion procedures under a undue burden/substantial obstacle analysis. The Court reaffirmed its Roe holding by adhering to the three major principles in Roe: 

1. That a woman has the right to abort prior to viability “without undue interference from the State:”
2. That the State has the right to restrict abortions after fetal viability so long as its laws contain exceptions for any pregnancy that endangers the life or health of a woman; and
3. That the State has a “legitimate interest” in the pregnancy to protect the life of the woman and fetus.

Planned Parenthood v. Casey challenged five provisions of the Pennsylvania Abortion Control Act of 1982. One required women, prior to getting an abortion, to obtain informed consent. Informed consent is a process in which a woman is provided with the risks of abortion, fetal development, gestational age of the fetus, whether the fetus can feel pain during the procedure, and that personhood begins at conception, etc. The act also require women to wait a mandatory 24 hours following signed consent to proceed with the procedure, obtain parental consent for minors with the allowance of a judicial bypass, and obtain signed spousal consent. Additionally, the act defined a “medical emergency” within the context of abortion procedures and set out specific reporting requirements by the facilities performing abortion services. The Court, in a plurality decision, upheld the central holding in Roe, but did however, overturn Roe’s trimester analysis framework and only found one provision–requiring spousal consent–burdensome and an unconstitutional regulation on a woman’s right to choose. The rest of the provisions were upheld.

Legal discourse pertaining to abortion did not end there.  In 2000, Stenberg v. Carhart surfaced to challenge a Nebraska statute prohibiting and criminalizing “partial birth abortions,” also known as “dilation and extraction” in the medical community. The court’s scientifically detailed opinion ultimately held that the Nebraska statute was unconstitutional and therefore could not be enforced as it did not carve out an exception for the “preservation of the health of the mother.” Additionally, the statute, with its ambiguous wording and terminology, unduly burdened the mother’s ability to choose an abortion, noting that in certain situations and in the presence of specific circumstances, partial birth abortions were “safer” than alternative procedures and methods.

In 2003, Congress and President George W. Bush signed into law the Federal Partial Birth Abortion Ban Act which expressively banned the “dilation and extraction” abortion method cited in Stenberg. Advocates that challenged the federal statute in lower courts had the statute struck down, but the challenge to the federal statute did not reach the Supreme Court until 2007 in Gonzales v. Carhart.

The court in Gonzales v. Carhart addressed the issue of whether the federal statute imposed a substantial obstacle for late-term pre-viability abortions and found it to be constitutional. The act directly outlined the procedure prohibited–the delivery of a viable/living fetus to an anatomical landmark which required an additional “overt act,” an act separate from the delivery usually involving piercing or crushing the fetal skull, to be taken in order to kill the partially delivered fetus, hence countering any argument that the statute was “vague.” Further, the court addressed the possibility of other legal abortion options and stated that, “if intact [dilation and extraction] is truly necessary in some circumstances, a prior injection to kill the fetus allows a doctor to perform the procedure, given that the Act’s prohibition only applies to the delivery of ‘a living fetus.'” Here, Congress sought, and the court agreed, to create a hard line between abortion and infanticide.

Since Gonzales, states have taken to further testing the limitations of abortion regulation, introducing “fetal pain” laws. Fetal pain laws proceed to assert that a fetus can feel pain at 20 weeks of gestation and therefore abortion should be prohibited after 20 weeks of pregnancy, but no challenges pertaining to these laws have reached the Supreme Court yet. In fact, Whole Woman’s Health v. Cole will be the first major abortion case to be reviewed by the Supreme Court since 2007.

---

Sifting Through Whole Women’s Health v. Cole

In 2013, the state of Texas passed into law House Bill 2 (H.B. 2), in an effort to “raise the standard and quality of care for women seeking abortions.” The statute, which contained four primary provisions pertaining to abortion regulation, is currently being challenged for two of its provisions. The first is a requirement of physicians performing abortions to have admitting privileges at a hospital located within a radius of 30 miles from where the abortion is being performed. The second provision being challenged requires abortion clinics to comply with the same set of standards applicable to ambulatory surgical centers (ASCs) along with compliance to standards set for abortion clinics.

The challenger? Whole Woman’s Health, a privately-owned women’s healthcare facility that offers comprehensive gynecology services, including abortion, and provides a holistic approach for the care of their patients. The organization was founded in 2003 by Amy Hagstrom Miller who saw a need in the communities of women to address pregnancy and reproductive choice not only as a medical matter, but also as something that requires a woman to evaluate her identity, goals, and future plans–an emotional and weighty process.  Whole Woman’s Health has seven offices within the United States and assists over 30,000 women per year for a variety of reproductive healthcare reasons.

At the time of trial, seven ASCs, located in five major Texas cities, were licensed to perform abortion services and would be able to comply with H.B. 2. Although Texas had over 40 abortion clinics prior to the law taking effect, it was stipulated that, at most, eight abortion-providing centers would be able to comply with the ASCs provision of H.B. 2, subjecting women exercising their right to choose to increased travel and transportation costs. During trial, the State offered expert testimony to suggest that the regulation would be “medically beneficial,” but did not prove necessity, and as such, the District Court found that the ASC requirement, in its entirety, was overly burdensome. Furthermore, the District Court also found that the physician privilege requirement “was not medically justifiable and that the burdens it imposed were not outweighed by any potential health benefits.”

The United States Court of Appeals for the Fifth Circuit found that res judicata barred any facial challenge and as-applied challenge (under a different analysis) on the admitting privilege and ASC compliance provisions of H.B. 2 and that the District Court erred in rejecting the State’s res judicata defense during the motion to dismiss stage of proceedings. Essentially, due to a previous lawsuit that was still pending a decision when Whole Women’s Health challenged H.B. 2 but was shortly thereafter decided, the Plaintiffs could not challenge the bill again as any injury arose out of the same claim and the parties had a legal relationship with one another.

The Court did, however, provide an analysis on the merits as well concluding that:

1. The Plaintiffs failed to prove that H.B. 2 was enacted with an “improper purpose,” mainly to close a majority of abortion clinics in Texas;
2. That the District Court incorrectly analyzed legislative factfinding of information that led to the passage of the Texas law under the “rational basis review,” which solely calls for the court to presume the law in question is valid and inquire whether that law is “rationally related to a legitimate state interest;”
3. The District Court’s analysis and the Plaintiff’s evidence did not satisfy the “large fraction test,” requiring a showing that the law imposes a substantial obstacle on a large fraction of women in Texas;
4. That the abortion services offered at the McAllen Whole Woman’s Health location, a clinic not complying with ASC standards, and lack of a “qualified” clinic for 235 miles created a substantial obstacle for a woman to obtain an abortion and therefore was granted injunctive relief until a licensed facility opened closer to the Rio Grand Valley;
5. That the Plaintiffs offered a considerable amount of evidence showing that the physicians at the McAllen location were denied privileges at the local hospital for reasons “other than their competence,” and were therefore granted injunctive relief enjoining the State of Texas from enforcing the privilege requirement; and
6. That the El Paso clinic was not granted injunctive relief based on an undue burden of women to travel over 550 miles to the nearest Texas abortion clinic in San Antonio because they could travel across state lines to Santa Teresa, New Mexico, which shares a metropolitan area with El Paso to obtain the procedure.

The Fifth Circuit largely upheld the challenged provisions of H.B. 2.

---

So…What Could That Mean for the Rest of Us?

H.B. 2 showed the level of impact that such abortion regulation could have on the availability of abortion services, bringing down the 40+ available abortion clinics in Texas to a mere 8-10 as outlined in the United States Court of Appeals for the Fifth Circuit decision. Such legislation could create a large and costly barrier, not only to the 5.4 million women in Texas, the second largest female populated state in the country, but to all women in the United States.

In four states–Mississippi, North Dakota, South Dakota, and Wyoming–only one abortion clinic remains and it is unclear whether or not those clinics would be able to survive with the Texas-based legislation.

If such regulation passed muster in the Supreme Court, there could be an increase in self-attempted abortion and risky abortion procedures, which was noted, by the Plaintiffs in Whole Women’s Health, as a growing trend after H.B. 2 was passed in Texas. Additionally, costs would increase in travel, transportation, lodging, and in the procedure itself, potentially costing women their actual right to choose. Qualified abortion clinics would be overwhelmed, appointments would be scarce and harder to coordinate with travel and work schedules, and ultimately, those most impacted would be individuals in poverty and those with transitioning immigration status. Such legislation would force an unhealthy psychological effect on woman already making a difficult decision and consequently impose a great burden on a major woman’s right without proof that the abortion clinics functioning today are doing so at a sub-par or dangerous level.

So, one question remains–what’s next for abortion regulations in the United States?

---

RESOURCES

Primary

FindLaw: Whole Women’s Health v. Cole

JUSTIA: Griswold v. Connecticut

JUSTIA: Roe v. Wade

JUSTIA: Stenberg v. Carhart

JUSTIA: Gonzales v. Carhart

Legal Information Institute: 18 U.S. Code § 1531

State of Texas Legislature: House Bill 2

Additional

The New York Times: Supreme Court to Hear Texas Abortion Law Case

Planned Parenthood: Federal and State Bans and Restrictions on Abortion

Linda Greenhouse: Becoming Justice Blackmun

Guttmacher Institute: State Policies in Brief – Counseling and Waiting Periods for Abortion

USA Today: Idaho First State to have Fetal Pain Law Rejected

National Public Radio (NPR): High Court’s Pass on ‘Fetal Pain’ Abortion Case Unlikely to Cool Debate

Whole Woman’s Health

Bloomberg: The Vanishing U.S. Abortion Clinic