SCOTUS Review: Whole Woman's Health v. Hellerstedt

The 2016 United States Supreme Court term includes one of the most important abortion rights cases in a generation.  For the first time since 1992, Whole Woman’s Health v. Hellerstedt puts the question of the proper constitutional standard for regulations on abortion squarely before the Court – but with an eight-member court, it is possible that there will be no clear resolution. 

The United States Supreme Court has recognized the constitutional right to choose to terminate a pregnancy, as part of the constitutional right to privacy, since 1973.  In Roe v. Wade, the Court held that this right was fundamental and therefore any law infringing upon that right should be viewed with strict scrutiny.  

In Planned Parenthood v. Casey in 1992, the Court revisited its approach in Roe and created a new standard for evaluating restrictions on abortion – the “undue burden” standard, which does not exist in this form in any other area of constitutional law.  For the past 24 years, lower federal courts across the United States have struggled with the application of this standard, reaching divergent conclusions when evaluating restrictions on abortion, even when faced with similar facts. 

Although Casey affirmed the core principles of Roe, including that there is a constitutional right to choose to end a pregnancy, the fact that the “undue burden” standard permits some level of additional regulation opened the floodgates for conservative lawmakers to introduce a deluge of new restrictions on abortion.  Anti-abortion advocates began developing model legislation and conservative lawmakers in a small but growing number of states got it passed.  By 2007, when the Court upheld the so-called Partial Birth Abortion Ban Act in Gonzales v. Carhart, hundreds of other restrictions had become law; many were struck down by courts while others were upheld or went unchallenged. 

In Whole Woman’s Health, the Court has been asked directly whether certain restrictions on the provision of abortion care (requiring the physician who performs the abortion to have privileges to admit a patient to a hospital, and requiring any abortion to be performed in an ambulatory surgical center), which will close down almost all of the abortion clinics in Texas, impose an undue burden on a woman’s right to choose.  The Court’s answer may shape access to abortion for women across the United States for the next generation. 

This course, presented by Jordan Goldberg, Senior Policy Advisor at the National Institute for Reproductive Health, reviews the constitutional law on abortion rights leading up to Whole Woman’s Health v. Hellerstedt, address the Court’s decision, and offers some conclusions about the implications of the decision for access to abortion in the United States today.  

Learning Objectives:

I.      Understand the constitutional right to terminate a pregnancy prior to Whole Woman’s Health

II.     Become familiar with the range of restrictions imposed on access to abortion in the years between Roe and 2016

III.    Understand how the Whole Woman’s Health decision changed the constitutional standards for abortion rights

IV.    Assess the potential for further restrictions on abortion in light of the decision