A Women’s Right to Choose is Reaffirmed Amidst Political Pushback

by Christina Lamm, J.D. Class of 2017 Touro Law Review Senior Staff Member

On June 27, 2016, the Supreme Court handed down a 5-3 decision in a highly publicized case that by its essence held the future of a woman’s right to choose in the balance.[1] This decision overturned the Fifth Circuit’s reversal of a Texas court declaring unconstitutional two provisions of the Texas legislatures controversial House Bill 2.[2] These particular provisions required that the doctor performing the abortion have admitting privileges at a hospital that is within thirty miles of the abortion clinic, and that the individual clinics have at least the standards that are required for ambulatory surgical centers.[3]

The effect of these provisions in Texas resulted in a drop in the number of abortion facilities from around forty to about twenty with just the admitting privilege provision in effect; the number of clinics would go down to seven or eight if the other provision were to take effect.[4] Needless to say, if these provisions had been allowed to stand, achieving an abortion would be a difficult task for some.

In the 1973 landmark case of Roe v. Wade, the Court enumerated the right of a woman to choose to have a pre-viability abortion.[5] Since then, states have used many tactics to try and limit the ability of a woman to exercise this right.[6] In 1992, the Court refined the standard and clarified just how far a state can go in its regulations of abortion in Planned Parenthood of Southeastern Pennsylvania v. Casey.[7] The Supreme Court decided that the undue burden standard should apply in abortion cases, which requires that no substantial obstacle should be placed “in the path of a woman seeking an abortion before the fetus attains viability.”[8] Basically, a state has the right to try and persuade a woman in making her decision, it has the right to place regulations on how and when a woman may have an abortion, but a state cannot substantially intervene with a women exercising her right to choose.[9] The burden must also be looked at in light of the benefits conferred from the laws.[10] Protecting the life of an unborn and protecting the health of the mother are legitimate state interests; they can, and have, led to restrictions on abortion being held constitutional.[11] The stated benefits of the restrictions must further those legitimate state interests; the benefits also need more than just lip-service. In order to be given weight when determining if an undue burden exits, there must be actual evidence that the benefits are real.[12]

In Hellerstedt, Texas argued that the restrictions on abortions were enacted to serve the legitimate interest of ensuring the safety of the women seeking abortions, but upon evidence the district court concluded that there was “no significant health-related problem that the new law helped to cure.”[13] A New York Times article quoted the former governor of Texas as saying that “the passage of the law brought us one step closer to an ideal world where there was no abortion”.[14] If that was anywhere near the true intention behind the law, it is far across the line constitutionality. It also highlights the very significant risk of laws, such as the ones discussed above, being enacted under the guise of protecting women’s health while in reality the purpose is to restrict abortion.[15]

The Supreme Court in Hellerstedt made clear that the district court had leave to review the evidence before it and did not have to defer to the legislatures stated intentions for enacting the law.[16] Justice Ginsberg, in her concurrence, went as far as to say that these laws could actually have the opposite effect of the legislatures stated intentions by causing more women to have to resort to procuring unlicensed abortions which would greatly endanger their health and safety.[17]

This decision was a definite win for pro-choice activists across the nation as many states have enacted similar laws and the state courts will have to abide by the decision of the Supreme Court.[18] This decision will likely serve to inspire pro-life activists to become even more creative when designing ways to restrict abortions thereby forcing abortion into the spotlight during the upcoming election in November, causing a polarization on both sides of the debate.[19]

[1] Whole Woman’s Health v. Hellerstedt, 136 S.Ct. 2292 (2016) (hereinafter “Hellerstedt”).

[2] See Whole Woman’s Health v. Cole, 790 F.3d 563 (5th Cir. 2015); Whole Woman’s Health v. Lakey, 46 F. Supp. 3d 673 (W.D. Tex. 2014).

[3] Hellerstedt at 2296.

[4] Id.

[5] Roe v. Wade, 410 U.S. 113, 163 (1973).

[6] Dawn Johnson, State Court Protection of Reproductive Rights: The Past, the Perils, and the Promise, 29 Colum. J. Gender & L. 41, 44(2015).

[7] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).

[8] Id. at 837.

[9] Id, at 877.

[10] Id. at 887-898.

[11] Id. at 882-883.

[12] Hellerstedt at 2298.

[13] Id. at 2311.

[14] Adam Liptak, Supreme Court Strikes Down Texas Abortion Restrictions, The New York Times (June 27, 2016), http://www.nytimes.com/2016/06/28/us/supreme-court-texas-abortion.html (last visited September 12, 2016).

[15] Brief of Constitutional Law Scholars Ashutosh Bhagwat, Lee Bollinger, et al., Amici Curiae Supporting Petitioners, Whole Woman’s Health v. Cole, 790 F.3d 563 (5th Cir. 2015).

[16] Hellerstedt at 2310.

[17] Hellerstedt at 2321.

[18] Pete Williams, Supreme Court Strikes Down Strict Texas Abortion Law, NBC News (June 27, 2016, 2:07 PM) http://www.nbcnews.com/news/us-news/supreme-court-strikes-down-strict-abortion-law-n583001 (last visited September 12, 2016).

[19] Supra note 12, http://www.nytimes.com/2016/06/28/us/supreme-court-texas-abortion.html.

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