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WHOLE WOMAN’S HEALTH ET AL. v. HELLERSTEDT,
COMMISSIONER, TEXAS DEPARTMENT OF STATE
HEALTH SERVICES, ET AL

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 15–274. Argued March 2, 2016—Decided June 27, 2016

A “State has a legitimate interest in seeing to it that abortion . . . isperformed under circumstances that insure maximum safety for the patient.” Roe v. Wade, 410 U. S. 113, 150. But “a statute which, while furthering [a] valid state interest, has the effect of placing asubstantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends,” Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 877 (pluralityopinion), and “[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seekingan abortion impose an undue burden on the right,” id., at 878. In 2013, the Texas Legislature enacted House Bill 2 (H. B. 2), which contains the two provisions challenged here. The “admittingprivileges requirement” provides that a “physician performing or inducing an abortion . . . must, on the date [of service], have active admitting privileges at a hospital . . . located not further than 30 milesfrom the” abortion facility. The “surgical-center requirement” requires an “abortion facility” to meet the “minimum standards . . . for ambulatory surgical centers” under Texas law. Before the law took effect, a group of Texas abortion providers filed the Abbott case, in which they lost a facial challenge to the constitutionality of the admitting-privileges provision. After the law went into effect, petitioners, another group of abortion providers (including some Abbott plaintiffs), filed this suit, claiming that both the admitting-privileges and the surgical-center provisions violated the Fourteenth Amendment, as interpreted in Casey. They sought injunctions preventing enforcement of the admitting-privileges provision as applied to physicians at one abortion facility in McAllen and one in El Paso and prohibiting enforcement of the surgical-center provision throughout Texas.

Based on the parties’ stipulations, expert depositions, and expert and other trial testimony, the District Court made extensive findings, including, but not limited to: as the admitting-privileges requirementbegan to be enforced, the number of facilities providing abortionsdropped in half, from about 40 to about 20; this decrease in geographical distribution means that the number of women of reproductiveage living more than 50 miles from a clinic has doubled, the number living more than 100 miles away has increased by 150%, the numberliving more than 150 miles away by more than 350%, and the numberliving more than 200 miles away by about 2,800%; the number of facilities would drop to seven or eight if the surgical-center provisiontook effect, and those remaining facilities would see a significant increase in patient traffic; facilities would remain only in five metropolitan areas; before H. B. 2’s passage, abortion was an extremely safeprocedure with very low rates of complications and virtually no deaths; it was also safer than many more common procedures not subject to the same level of regulation; and the cost of compliance with the surgical-center requirement would most likely exceed $1.5 million to $3 million per clinic. The court enjoined enforcement of theprovisions, holding that the surgical-center requirement imposed anundue burden on the right of women in Texas to seek previability abortions; that, together with that requirement, the admitting-privileges requirement imposed an undue burden in the Rio GrandeValley, El Paso, and West Texas; and that the provisions togethercreated an “impermissible obstacle as applied to all women seeking apreviability abortion.”

The Fifth Circuit reversed in significant part. It concluded that res judicata barred the District Court from holding the admitting-privileges requirement unconstitutional statewide and that res judicata also barred the challenge to the surgical-center provision. Reasoning that a law is “constitutional if (1) it does not have the purpose or effect of placing a substantial obstacle in the path of a womanseeking an abortion of a nonviable fetus and (2) it is reasonably related to . . . a legitimate state interest,” the court found that both requirements were rationally related to a compelling state interest inprotecting women’s health.

More Supreme Court

[June 27, 2016]

JUSTICE BREYER delivered the opinion of the Court.

In Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 878 (1992), a plurality of the Court con- cluded that there “exists” an “undue burden” on a woman’s right to decide to have an abortion, and consequently a provision of law is constitutionally invalid, if the “purpose or effect” of the provision “is to place a substantial obstaclein the path of a woman seeking an abortion before the fetus attains viability.” (Emphasis added.) The plurality added that “[u]nnecessary health regulations that havethe purpose or effect of presenting a substantial obstacleto a woman seeking an abortion impose an undue burdenon the right.” Ibid.

We must here decide whether two provisions of Texas’ House Bill 2 violate the Federal Constitution as inter-preted in Casey. The first provision, which we shall call the “admitting-privileges requirement,” says that

>“[a] physician performing or inducing an abortion . . .must, on the date the abortion is performed or induced, have active admitting privileges at a hospitalthat . . . is located not further than 30 miles from the location at which the abortion is performed or induced.” Tex. Health & Safety Code Ann. §171.0031(a) (West Cum. Supp. 2015).

This provision amended Texas law that had previously required an abortion facility to maintain a written protocol “for managing medical emergencies and the transfer of patients requiring further emergency care to a hospital.” 38 Tex. Reg. 6546 (2013).

The second provision, which we shall call the “surgicalcenter requirement,” says that

“the minimum standards for an abortion facility must be equivalent to the minimum standards adopted under [the Texas Health and Safety Code section] for ambulatory surgical centers.” Tex. Health & Safety Code Ann. §245.010(a).

We conclude that neither of these provisions offers medical benefits sufficient to justify the burdens uponaccess that each imposes. Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, Casey, supra, at 878 (plurality opinion), and each violatesthe Federal Constitution. Amdt. 14, §1.

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