Whole Woman's Health v. Hellerstedt, No. 15–274.

• Court: United States Supreme Court
• Writing for the Court: Justice BREYER delivered the opinion of the Court.
• Citation: 195 L.Ed.2d 665,136 S.Ct. 2292
• Parties: WHOLE WOMAN'S HEALTH, et al., Petitioners v. John HELLERSTEDT, Commissioner, Texas Department of State Health Services, et al.
• Docket Number: No. 15–274.
• Decision Date: 27 June 2016

136 S.Ct. 2292
195 L.Ed.2d 665

WHOLE WOMAN'S HEALTH, et al., Petitioners
v.
John HELLERSTEDT, Commissioner, Texas Department of State Health Services, et al.

No. 15–274.

Supreme Court of the United States

Argued March 2, 2016.
Decided June 27, 2016.
As Revised June 27, 2016.

Stephanie Toti, New York, NY, for Petitioners.

Donald B. Verrilli, Jr., Solicitor General, for the United States as amicus curiae, by special leave of the Court, supporting the petitioners.

Scott A. Keller, Austin, TX, for Respondents.

Ken Paxton, Attorney General of Texas, Charles E. Roy, First Assistant Attorney General, Scott A. Keller, Solicitor General, J. Campbell Barker, Deputy Solicitor General, Beth Klusmann, Michael P. Murphy, Assistant Solicitors General, Office of the Attorney General, Austin, TX, for Respondents.

J. Alexander Lawrence, Morrison & Foerster LLP, New York, Marc A. Hearron, Morrison & Foerster LLP, Washington, DC, Jan Soifer, Patrick J. O'Connell, O'Connell & Soifer LLP, Austin, TX, Stephanie Toti, David Brown, Janet Crepps, Julie Rikelman, New York, NY, Leah M. Litman, Cambridge, MA, for Petitioners.

Justice BREYER delivered the opinion of the Court.

In Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 878, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), a plurality of the Court concluded 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 obstacle in the path of a woman seeking an abortion before the fetus attains viability." (Emphasis added.) The plurality added that "[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right." Ibid .

We must here decide whether two provisions of Texas' House Bill 2 violate the Federal Constitution as interpreted 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 hospital that ... 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 "surgical-center 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 confers medical benefits sufficient to justify the burdens upon access 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, 112 S.Ct. 2791 (plurality opinion), and each violates the Federal Constitution. Amdt. 14, § 1.

I

A

In July 2013, the Texas Legislature enacted House Bill 2 (H.B. 2 or Act). In September (before the new law took effect), a group of Texas abortion providers filed an action in Federal District Court seeking facial invalidation of the law's admitting-privileges provision. In late October, the District Court granted the injunction. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 951 F.Supp.2d 891, 901 (W.D.Tex.2013). But three days later, the Fifth Circuit vacated the injunction, thereby permitting the provision to take effect. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 734 F.3d 406, 419 (2013).

The Fifth Circuit subsequently upheld the provision, and set forth its reasons in an opinion released late the following March. In that opinion, the Fifth Circuit pointed to evidence introduced in the District Court the previous October. It noted that Texas had offered evidence designed

136 S.Ct. 2301

to show that the admitting-privileges requirement "will reduce the delay in treatment and decrease health risk for abortion patients with critical complications," and that it would " 'screen out' untrained or incompetent abortion providers." Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 748 F.3d 583, 592 (2014) (Abbott ). The opinion also explained that the plaintiffs had not provided sufficient evidence "that abortion practitioners will likely be unable to comply with the privileges requirement." Id., at 598. The court said that all "of the major Texas cities, including Austin, Corpus Christi, Dallas, El Paso, Houston, and San Antonio," would "continue to have multiple clinics where many physicians will have or obtain hospital admitting privileges." Ibid. The Abbott plaintiffs did not file a petition for certiorari in this Court.

B

On April 6, one week after the Fifth Circuit's decision, petitioners, a group of abortion providers (many of whom were plaintiffs in the previous lawsuit), filed the present lawsuit in Federal District Court. They sought an injunction preventing enforcement of the admitting-privileges provision as applied to physicians at two abortion facilities, one operated by Whole Woman's Health in McAllen and the other operated by Nova Health Systems in El Paso. They also sought an injunction prohibiting enforcement of the surgical-center provision anywhere in Texas. They claimed that the admitting-privileges provision and the surgical-center provision violated the Constitution's Fourteenth Amendment, as interpreted in Casey .

The District Court subsequently received stipulations from the parties and depositions from the parties' experts. The court conducted a 4–day bench trial. It heard, among other testimony, the opinions from expert witnesses for both sides. On the basis of the stipulations, depositions, and testimony, that court reached the following conclusions:

1. Of Texas' population of more than 25 million people, "approximately 5.4 million" are "women" of "reproductive age," living within a geographical area of "nearly 280,000 square miles." Whole Woman's Health v. Lakey, 46 F.Supp.3d 673, 681 (W.D.Tex.2014) ; see App. 244.

2. "In recent years, the number of abortions reported in Texas has stayed fairly consistent at approximately 15–16% of the reported pregnancy rate, for a total number of approximately 60,000–72,000 legal abortions performed annually." 46 F.Supp.3d, at 681 ; see App. 238.

3. Prior to the enactment of H.B. 2, there were more than 40 licensed abortion facilities in Texas, which "number dropped by almost half leading up to and in the wake of enforcement of the admitting-privileges requirement that went into effect in late-October 2013." 46 F.Supp.3d, at 681 ; App. 228–231.

4. If the surgical-center provision were allowed to take effect, the number of abortion facilities, after September 1, 2014, would be reduced further, so that "only seven facilities and a potential eighth will exist in Texas." 46 F.Supp.3d, at 680 ; App. 182–183.

5. Abortion facilities "will remain only in Houston, Austin, San Antonio, and the Dallas/Fort Worth metropolitan region." 46 F.Supp.3d, at 681 ; App. 229–230. These include "one facility in Austin, two in Dallas, one in Fort Worth, two in Houston, and either one or two in San Antonio." 46 F.Supp.3d, at 680 ; App. 229–230.

6. "Based on historical data pertaining to Texas's average number of abortions, and assuming perfectly equal distribution among the remaining seven or eight providers,

136 S.Ct. 2302

this would result in each facility serving between 7,500 and 10,000 patients per year. Accounting for the seasonal variations in pregnancy rates and a slightly unequal distribution of patients at each clinic, it is foreseeable that over 1,200 women per month could be vying for counseling, appointments, and follow-up visits at some of these facilities." 46 F.Supp.3d, at 682 ; cf. App. 238.

7. The suggestion "that these seven or eight providers could meet the demand of the entire state stretches credulity." 46 F.Supp.3d, at 682 ; see App. 238.

8. "Between November 1, 2012 and May 1, 2014," that is, before and after enforcement of the admitting-privileges requirement, "the decrease in geographical distribution of abortion facilities" has meant that the number of women of reproductive age living more than 50 miles from a clinic has doubled (from 800,000 to over 1.6 million); those living more than 100 miles has increased by 150% (from 400,000 to 1 million); those living more than 150 miles has increased by more than 350% (from 86,000 to 400,000); and those living more than 200 miles has increased by about 2,800% (from 10,000 to 290,000). After September 2014, should the surgical-center requirement go into effect, the number of women of reproductive age living significant distances from an abortion provider will increase as follows: 2 million women of reproductive age will live more than 50 miles from an abortion provider; 1.3 million will live more than 100 miles from an abortion provider; 900,000 will live more than 150 miles from an abortion provider; and 750,000 more than 200 miles from an abortion provider. 46 F.Supp.3d, at 681–682 ; App. 238–242.

9. The "two requirements erect a particularly high barrier for poor, rural, or disadvantaged women." 46 F.Supp.3d, at 683 ; cf. App. 363–370.

10. "The great weight of evidence demonstrates that, before the act's passage, abortion in Texas was extremely safe with particularly low rates of serious complications and virtually no deaths occurring on account of the procedure." 46 F.Supp.3d, at 684 ; see, e.g., App. 257–259, 538; see also id., at 200–202, 253–257.

11. "Abortion, as...