Learn about the case that’s the center of this storm.
What is Whole Woman’s Health v. Hellerstedt about?
In 2013, Texas legislators passed a law to close down abortion clinics. You may remember this law — Wendy Davis filibustered for 11 hours at the end of a special legislative session in June to try to stop it. Thousands of pro-choice protesters convened in the Texas Capitol and yelled, drowning out the Senate’s vote, until the bill died — unfortunately only temporarily. When the law was not passed by the Senate in June, then-Governor Rick Perry called another special session with the specific purpose of having the Senate pass the anti-abortion law, which he signed on July 18, calling it a “happy, celebratory day.”
The law — HB2 — was an omnibus anti-abortion law that did several things at once. Its primary purpose was to force abortion clinics to close. It did that two ways: by requiring abortion clinics to fulfill Ambulatory Surgical Center (ASC) requirements — which forced providers to become mini-hospitals, and forced them to close unless they could afford costly and unnecessary redesign. For example, renovations required clinic hallways to be 8 feet wide — much wider than necessary for a patient to get through. The bill also stipulated “the angle that water flows out of drinking fountains,” the types of floor tiles clinics must use, and much more. The overall cost of implementing these renovations could have been anywhere between $1 million and $3 million dollars — money that abortion providers in Texas simply don’t have.
Second, it required abortion providers to have admitting privileges at a hospital within 30 miles of the clinic. This was another mechanism designed to force abortion clinics to close. Hospitals refused to let providers have those privileges for a variety of reasons, including religious affiliation, a wish to avoid controversy, intimidation from the state, or, ironically, the fact that abortion providers don’t have enough of a track record admitting patients because abortion is so overwhelmingly safe. Abortion is one of the safest medical procedures with major complications occurring less than a quarter of a percent of the time. In those exceedingly rare instances of complication, patients can go to their closest hospital and they will be admitted, regardless of whether or not their abortion provider has admitting privileges there. There is nothing reasonable about admitting privileges requirements unless the goal is to force abortion clinics to close, which is cruel and is a direct strike to health and safety for women.
Sometimes this type of abortion clinic closure law is referred to as a “TRAP Law,” which stands for a Targeted Regulation of Abortion Providers. As explained by NARAL in this video, the intention is to single out abortion clinics with such extreme regulations that they are forced to close:
But wait, that’s not it. In addition, HB2 also banned abortions in Texas at 20 weeks, which is an unconstitutional limit on second trimester abortion based on junk science that claims fetuses can feel pain at 20 weeks. The American Medical Association disputes this fictitious claim, noting that if fetuses can feel pain, it would be well after 30 weeks. Importantly, many pregnancy complications are known later in pregnancy, after 20 weeks, meaning this law was designed to prevent women with severe complications from accessing the abortion that they need. Such laws also heavily burden young, low-income women already struggling with access to abortion care. Studies have shown that poor people are disproportionately the ones having abortions at 20-weeks or later, due to financial barriers, including travel, time off work, and finding childcare.
The law also put unnecessary restrictions on the use of medication abortions — which made abortion harder to access earlier in pregnancy. Nearly 40 percent of women in Texas reported they are unable to have the type of abortion they want because of these needless restrictions. They must also travel multiple times to get the full dose of the abortion pill, since the law ignores new FDA protocols for this type of abortion and says the second dosage has to be taken at the doctor’s office, instead of at home.
Immediately after the law went into effect, 11 of the abortion clinics in the state shut down completely. Since then, a total of 22 clinics have closed. Now at least 900,000 women in Texas live 150 or more miles away from any abortion clinic. The people who need abortions in Texas will not only have to drive extremely far because of this law — they will also have to stay overnight or make multiple trips because of Texas’s 24 hour waiting period between seeing the doctor and having the abortion. Some will have to spend thousands of dollars and several days traveling to have an abortion. Now how, exactly, is that pro-woman?
Whole Woman’s Health, a group of abortion clinics in Texas, challenged the ASC and admitting privileges portions of the law in federal court, asserting that it places an “undue burden” on access to abortion. Arguments in Whole Woman’s Health v. Hellerstedt were heard by the Supreme Court on March 2, 2016.
On June 27, 2016, the Supreme Court ruled 5-3 in favor of the abortion providers. They struck down the admitting privilege and ASC requirements, noting that they are an unconstitutional and undue burden on people who access abortion care. This precedent-setting case means that laws similar to Texas’s HB2 are unconstitutional. Many states, including Alabama, Mississippi, and Wisconsin already had similar anti-abortion laws fall as a result of the ruling. Other states still have dubious laws on the books, and we can expect they will continue to be challenged.
What was at stake here?
This was the most sweeping abortion access decision at the Supreme Court in a generation.
22 states already passed similar laws, and dozens more are considering new or additional restrictions on abortion. Mississippi, Missouri, North Dakota, South Dakota, and Wyoming are left with only one abortion provider.
Since the Court sided with the abortion providers, those Texas clinics can reopen, although that will not be immediate. It could take several years for clinics across Texas to reopen, due to logistical issues faced by providers.
Importantly, this ruling set precedent, and laws similar to Texas’s HB2 have begun to fall around the country. However, in some states abortion clinic closure laws remain, and it’s unclear how they will be resolved and how long that will take.
Content note: Abortion access is critical for women’s dignity and equality whether an individual woman needs an abortion or not, and that is why much of our language refers to women. That said, we consciously lift up that transgender people, including men and gender non-conforming people, need abortions, have abortions, and are hurt by abortion clinic closure laws. Reproaction is committed to ensuring abortion access for all.