Whole Woman’s Health v. Hellerstedt

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Whole Woman’s Health v. Hellerstedt, No. 15-274 (Sup. Ct.), was the broadest expansion in abortion since Roe v. Wade. Certiorari was granted by the U.S. Supreme Court on November 13, 2015, to review a per curiam decision by the Fifth Circuit rendered by Judges Prado, Elrod, and Haynes on June 9, 2015. A total of 39 amicus briefs were filed against HB 2 in late December 2015 and early January 2016, and nearly an equal number amicus briefs in support of the good Texas law (HB 2) were filed in early February 2016.

On June 27, 2016, the U.S. Supreme Court held by a margin of one vote (5-3) that the pro-life Texas HB 2 was unconstitutional. Justice Anthony Kennedy provided the decisive vote as he shifted to the side favoring abortion.

Roe v. Wade established a constitutional right to a safe abortion. Whole Woman's Health v. Hellerstedt established there is a broader, virtually unlimited right to abortion that includes a constitutional right to unsafe abortions.

Two issues are at stake in this case: whether Texas can require abortion clinics to meet the requirements of ambulatory surgery centers, and whether Texas can require that a physician have hospital admitting privileges within 30 miles of the abortion before performing one.

Questions Presented

In Planned Parenthood of Southeastern Pennsylvania v. Casey, this Court reaffirmed that the decision to end a pregnancy prior to viability is a fundamental liberty protected by the Due Process Clause. 505 U.S. 833, 845-46 (1992). It held that a restriction on this liberty is impermissible if it amounts to an undue burden. Id. at 876-77. Under this standard, states may not enact "[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion." Id. at 878.
The questions presented are:
(a) When applying this standard, does a court err 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?
(b) Did the Fifth Circuit err in concluding that this standard permits Texas to enforce, in nearly all circumstances, laws that would 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?
Did the Fifth Circuit err in holding that res judicata provides a basis for reversing the district court’s judgment in part?

Arguments in support of HB 2

Most abortionists do not establish a genuine patient-physician relationship, and use degrading clinics that tend to discourage any women from coming back for follow-up care. HB 2 properly protects against exploitation of women by the abortion industry.

Complications from most procedures tend to be small in percentage, but severe in effect and expense when they do occur. It is the overall harm that matters, not just the frequency, so it is meaningless for opponents of HB 2 to argue that frequency of complications is low without also disclosing the severity of those complications.

Admitting privileges

Hospitals require malpractice coverage and a degree of competency, which many abortionists lack. It is reasonable for States to extend the standards of hospitals by requiring them of abortionists.

Ambulatory surgery center

Many states require that certain out-patient procedures, such as procedures that use general anesthesia, be done in an ambulatory surgery center rather than in an office. Abortion should not be an exception.

38 amicus briefs by liberal groups filed against HB 2

Liberal groups filed 38 amicus briefs against HB 2.[1] These include briefs by:

  • The American Civil Liberties Union, et al.
  • Theologians and Ethicists.
  • Law Professors.
  • Republican Majority for Choice, et al.
  • Health Economists.
  • Advocates for Youth.
  • Experts in Health Policy.
  • Institute for Women's Policy Research, et al.
  • United States.
  • Constitutional Accountability Center.
  • Jane's Due Process, Inc.
  • Public Health Deans, Department Chairs, and Faculty and the American Public Health Association.
  • National Physicians Alliance, et al.
  • Scientists, Science Educators, Skeptics, et al.
  • Society of Hospital Medicine and Society of OB/Gyn Hospitalists.
  • Social Science Researchers.
  • American College of Obstetricians and Gynecologists, et al.
  • New York City Bar Association.
  • Information Society Project at Yale Law School.
  • National Abortion Federation and Abortion Providers.
  • Physicians for Reproductive Health.
  • Lambda Legal Defense and Education Fund, Inc.
  • 163 Members of Congress.
  • New York, et al.
  • Planned Parenthood Federation of America, et al.
  • National Women's Law Center, et al.
  • National Center for Lesbian Rights, et al.
  • Twelve Organizations Dedicated to the Fight for Reproductive Justice.
  • National Latina Institute for Reproductive Health, et al.
  • Experts and Organizations Supporting Survivors of Intimate Partner Violence.
  • Medical Staff Professionals.
  • Honorable Wendy Davis, Teresa Fedor, Lucy Flores, and Judy Nicastro.

Brief by liberal medical groups

Siding with abortion are the American College of Obstetricians and Gynecologists (“ACOG”), the American Medical Association (“AMA”), the American Academy of Family Physicians (“AAFP”), and the American Osteopathic Association (“AOA”), which filed an amicus brief on the petition for certiorari.[2] They asserted that:

Reproductive healthcare is essential to a woman’s overall health, and access to abortion is an important component of reproductive healthcare. When state legislatures enact laws that restrict access to abortion without any valid medical justification, they jeopardize women’s health.

Follow that? Limiting access to abortion somehow jeopardizes women's health, as though abortion is somehow healthy in itself. If that were true, then the life expectancy of women would correlate around the world with access to abortion. It does not.

Brief by liberal American Public Health Association

The American Public Health Association (APHA), which previously filed an amicus brief in support of ObamaCare in King v. Burwell,[3] filed a brief against Texas HB 2 in this Cole case. The APHA's first argument point was that "Access to Reproductive Health Services, Including Abortion, Is Critical to a Fully Functioning Public Health System." The AHPA's brief concluded that "H.B. 2 ... threatens to significantly harm the State’s public health and welfare."


  1. The Facility Guidelines Institute filed a brief in support of neither party.
  2. http://www.scotusblog.com/wp-content/uploads/2015/10/Medical-Associations-Amicus-Brief.pdf
  3. In a news release, APHA asserted that "[t]he Supreme Court’s decision on King v. Burwell is the difference between lives saved and lives lost, a healthier nation or a sicker one." [1]