Whole Woman's Health v. Hellerstedt

579 U.S. _

Case Year: 2016

Case Ruling: 5-3, Reversed and Remanded

Opinion Justice: Breyer

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Ginsburg, Kagan, Kennedy, Sotomayor


1st Concurring Opinion

Author: Ginsburg


1st Dissenting Opinion

Author: Alito

Joiner(s): Roberts, Thomas

2nd Concurring Opinion



2nd Dissenting Opinion

Author: Thomas


3rd Concurring Opinion



3rd Dissenting Opinion



Other Concurring Opinions:


In 2013 Texas enacted a law (H.B. 2) with two provisions relating to abortion:

(1) The “admitting-privileges requirement”: It requires that doctors performing or inducing an abortion obtain admitting privileges at a hospital located no further than 30 miles from the abortion facility.

(2) The “surgical-center requirement:” It requires an abortion facility to meet the minimum standards for ambulatory surgical centers under Texas law. These requirements include detailed specifications relating to the size of the nursing staff, building dimensions, and other building requirements. For example, facilities must include a full surgical suite with an operating room that has “a clear floor area of at least 240 square feet” in which “[t]he minimum clear dimension between built-in cabinets, counters, and shelves shall be 14 feet.”

Some commentators (including Justice Ginsburg in her concurrence) refer to these and similar regulations as Targeted Regulation of Abortion Providers (TRAP) laws. At the time of Hellerstedt, nearly half the states had some form of a TRAP law in effect.

A group of abortion providers brought suit on the ground that H.B. 2 violated the Fourteenth Amendment’s due process, as interpreted by the Supreme Court in Planned Parenthood v. Casey (1992). The providers claimed that the provisions failed to meet Casey’s “undue burden” standard because they are “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion” and so “impose an undue burden on the right.”

A federal district court agreed and enjoined the state from enforcing both provisions. But the U.S. Court of Appeals for the Fifth Circuit reversed. It interpreted Casey’s standard to allow states to regulate abortion if the regulation was “reasonably related to a legitimate state interest.” After the circuit court found that both requirements were rationally related to a compelling state interest in protecting women’s health, the abortion providers asked the Supreme Court to hear their case.


JUSTICE BREYER delivered the opinion of the Court.


In Planned Parenthood of Southeastern Pa. v. Casey (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.”

We must here decide whether two provisions of Texas’ House Bill 2 violate the Federal Constitution as interpreted in Casey … [W]e shall call the first, the “admitting-privileges requirement” [and the second], the “surgical-center requirement.”

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, and each violates the Federal Constitution. Amdt. 14, §1 ….

Undue Burden—Legal Standard

We begin with the standard, as described in Casey. We recognize that the “State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient.” Roe v. Wade (1973). But, we added, “a statute which, while furthering [a] valid state interest, has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends.” Casey. Moreover, “[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.”

The Court of Appeals wrote that a state law is “constitutional if: (1) it does not have the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus; and (2) it is reasonably related to (or designed to further) a legitimate state interest.” The Court of Appeals went on to hold that “the district court erred by substituting its own judgment for that of the legislature” when it conducted its “undue burden inquiry,” in part because “medical uncertainty underlying a statute is for resolution by legislatures, not the courts.”

The Court of Appeals’ articulation of the relevant standard is incorrect. The first part of the Court of Appeals’ test may be read to imply that a district court should not consider the existence or nonexistence of medical benefits when considering whether a regulation of abortion constitutes an undue burden. The rule announced in Casey, however, requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer. And the second part of the test is wrong to equate the judicial review applicable to the regulation of a constitutionally protected personal liberty with the less strict review applicable where, for example, economic legislation is at issue. See, e.g., Williamson v. Lee Optical of Okla., Inc., (1955). The Court of Appeals’ approach simply does not match the standard that this Court laid out in Casey, which asks courts to consider whether any burden imposed on abortion access is “undue.”

The statement that legislatures, and not courts, must resolve questions of medical uncertainty is also inconsistent with this Court’s case law. Instead, the Court, when determining the constitutionality of laws regulating abortion procedures, has placed considerable weight upon evidence and argument presented in judicial proceedings. In Casey, for example, we relied heavily on the District Court’s factual findings and the research-based submissions of amici in declaring a portion of the law at issue unconstitutional …

Undue Burden—Admitting-Privileges Requirement

Turning to the lower courts’ evaluation of the evidence, we first consider the admitting-privileges requirement. The District Court held that the legislative change imposed an “undue burden” on a woman’s right to have an abortion. We conclude that there is adequate legal and factual support for the District Court’s conclusion.

The purpose of the admitting-privileges requirement is to help ensure that women have easy access to a hospital should complications arise during an abortion procedure. But the District Court found that it brought about no such health-related benefit. The court found that “[t]he 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.” Thus, there was no significant health-related problem that the new law helped to cure …

We add that, when directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case. This answer is consistent with the findings of the other Federal District Courts that have considered the health benefits of other States’ similar admitting-privileges laws.

At the same time, the record evidence indicates that the admitting-privileges requirement places a “substantial obstacle in the path of a woman’s choice.” The District Court found, as of the time the admitting-privileges requirement began to be enforced, the number of facilities providing abortions dropped in half, from about 40 to about 20. …

In our view, the record contains sufficient evidence that the admitting-privileges requirement led to the closure of half of Texas’ clinics, or thereabouts. Those closures meant fewer doctors, longer waiting times, and increased crowding. Record evidence also supports the finding that after the admitting-privileges provision went into effect, the “number of women of reproductive age living in a county . . . more than 150 miles from a provider increased from approximately 86,000 to 400,000 … We recognize that increased driving distances do not always constitute an “undue burden.” But here, those increases are but one additional burden, which, when taken together with others that the closings brought about, and when viewed in light of the virtual absence of any health benefit, lead us to conclude that the record adequately supports the District Court’s “undue burden” conclusion …

The dissent’s only argument why these clinic closures, as well as the ones discussed in Part V, infra, may not have imposed an undue burden is this: Although “H. B. 2 caused the closure of some clinics,” post, at 26 (emphasis added), other clinics may have closed for other reasons (so we should not “actually count” the burdens resulting from those closures against H. B. 2), post, at 30–31. But petitioners satisfied their burden to present evidence of causation by presenting direct testimony as well as plausible inferences to be drawn from the timing of the clinic closures.

Undue Burden—Surgical-Center Requirement

The second challenged provision of Texas’ new law sets forth the surgical-center requirement …

There is considerable evidence in the record supporting the District Court’s findings indicating that the statutory provision requiring all abortion facilities to meet all surgical-center standards does not benefit patients and is not necessary. The District Court found that “risks are not appreciably lowered for patients who undergo abortions at ambulatory surgical centers as compared to nonsurgical-center facilities.” The court added that women “will not obtain better care or experience more frequent positive outcomes at an ambulatory surgical center as compared to a previously licensed facility.” And these findings are well supported.

The record makes clear that the surgical-center requirement provides no benefit when complications arise in the context of an abortion produced through medication. That is because, in such a case, complications would almost always arise only after the patient has left the facility. … The total number of deaths in Texas from abortions was five in the period from 2001 to 2012, or about one every two years (that is to say, one out of about 120,000 to 144,000 abortions), Nationwide, childbirth is 14 times more likely than abortion to result in death, but Texas law allows a midwife to oversee childbirth in the patient’s own home ….

The upshot is that this record evidence, along with the absence of any evidence to the contrary, provides … sufficient support for the more general conclusion that the surgical-center requirement “will not [provide] better care or . . . more frequent positive outcomes.” The record evidence thus supports the ultimate legal conclusion that the surgical-center requirement is not necessary.

At the same time, the record provides adequate evidentiary support for the District Court’s conclusion that the surgical-center requirement places a substantial obstacle in the path of women seeking an abortion. The parties stipulated that the requirement would further reduce the number of abortion facilities available to seven or eight facilities, located in Houston, Austin, San Antonio, and Dallas/Fort Worth In the District Court’s view, the proposition that these “seven or eight providers could meet the demand of the entire State stretches credulity.” We take this statement as a finding that these few facilities could not “meet” that “demand.”

Texas suggests that the seven or eight remaining clinics could expand sufficiently to provide abortions for the 60,000 to 72,000 Texas women who sought them each year …

Attempting to provide the evidence that Texas did not, the dissent points to an exhibit … showing that three Texas surgical centers, two in Dallas as well as the $26-million facility in Houston, are each capable of serving an average of 7,000 patients per year …. The exhibit does nothing to rebut the commonsense inference that the dramatic decline in the number of available facilities will cause a shortfall in capacity should H. B. 2 go into effect …. More fundamentally, in the face of no threat to women’s health, Texas seeks to force women to travel long distances to get abortions in crammed-to-capacity superfacilities. Patients seeking these services are less likely to get the kind of individualized attention, serious conversation, and emotional support that doctors at less taxed facilities may have offered ….

We agree with the District Court that the surgical-center requirement, like the admitting-privileges requirement, provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an “undue burden” on their constitutional right to do so ….

For these reasons the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.


The Texas law called H. B. 2 inevitably will reduce the number of clinics and doctors allowed to provide abortion services. Texas argues that H. B. 2’s restrictions are constitutional because they protect the health of women who experience complications from abortions. In truth, “complications from an abortion are both rare and rarely dangerous.” Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory-surgical-center or hospital admitting-privileges requirements. Given those realities, it is beyond rational belief that H. B. 2 could genuinely protect the health of women, and certain that the law “would simply make it more difficult for them to obtain abortions.” When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety. Targeted Regulation of Abortion Providers laws like H. B. 2 that “do little or nothing for health, but rather strew impediments to abortion,” cannot survive judicial inspection.


JUSTICE THOMAS, dissenting.

Today’s opinion … reimagines the undue-burden standard used to assess the constitutionality of abortion restrictions. Nearly 25 years ago, in Planned Parenthood of Southeastern Pa. v. Casey, a plurality of this Court invented the “undue burden” standard as a special test for gauging the permissibility of abortion restrictions. Casey held that a law is unconstitutional if it imposes an “undue burden” on a woman’s ability to choose to have an abortion, meaning that it “has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Casey thus instructed courts to look to whether a law substantially impedes women’s access to abortion, and whether it is reasonably related to legitimate state interests. As the Court explained, “[w]here it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power” to regulate aspects of abortion procedures, “all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.” Gonzales v. Carhart (2007).

I remain fundamentally opposed to the Court’s abortion jurisprudence. Even taking Casey as the baseline, however, the majority radically rewrites the undue-burden test in three ways. First, today’s decision requires courts to “consider the burdens a law imposes on abortion access together with the benefits those laws confer.” …

[This] free-form balancing test is contrary to Casey. When assessing Pennsylvania’s recordkeeping requirements for abortion providers, for instance, Casey did not weigh its benefits and burdens. Rather, Casey held that the law had a legitimate purpose because data collection advances medical research, “so it cannot be said that the requirements serve no purpose other than to make abortions more difficult.” The opinion then asked whether the recordkeeping requirements imposed a “substantial obstacle,” and found none. Contrary to the majority’s statements, Casey did not balance the benefits and burdens of Pennsylvania’s spousal and parental notification provisions, either. Pennsylvania’s spousal notification requirement, the plurality said, imposed an undue burden because findings established that the requirement would “likely . . . prevent a significant number of women from obtaining an abortion”—not because these burdens outweighed its benefits …

Second, by rejecting the notion that “legislatures, and not courts, must resolve questions of medical uncertainty,” the majority discards another core element of the Casey framework. Before today, this Court had “given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” This Court emphasized that this “traditional rule” of deference “is consistent with Casey.” … This Court could not have been clearer: When-ever medical justifications for an abortion restriction are debatable, that “provides a sufficient basis to conclude in [a] facial attack that the [law] does not impose an undue burden.” Gonzales. Otherwise, legislatures would face “too exacting” a standard ….

Finally, the majority overrules another central aspect of Casey by requiring laws to have more than a rational basis even if they do not substantially impede access to abortion. “Where [the State] has a rational basis to act and it does not impose an undue burden,” this Court previously held, “the State may use its regulatory power” to impose regulations “in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.” No longer. Though the majority declines to say how substantial a State’s interest must be, one thing is clear: The State’s burden has been ratcheted to a level that has not applied for a quarter century ….

The majority’s undue-burden test looks far less like our post-Casey precedents and far more like the strict-scrutiny standard that Casey rejected, under which only the most compelling rationales justified restrictions on abortion. One searches the majority opinion in vain for any acknowledgment of the “premise central” to Casey’s rejection of strict scrutiny: “that the government has a legitimate and substantial interest in preserving and promoting fetal life” from conception, not just in regulating medical procedures. Meanwhile, the majority’s undue-burden balancing approach risks ruling out even minor, previously valid infringements on access to abortion. Moreover, by second-guessing medical evidence and making its own assessments of “quality of care” issues, the majority reappoints this Court as “the country’s ex officio medical board with powers to disapprove medical and operative practices and standards throughout the United States.” And the majority seriously burdens States, which must guess at how much more compelling their interests must be to pass muster and what “commonsense inferences” of an undue burden this Court will identify next.


Under our cases, petitioners must show that the admitting privileges and ASC [ambulatory surgical-center] requirements impose an “undue burden” on women seeking abortions. Gonzales v. Carhart (2007). And in order to obtain the sweeping relief they seek—facial invalidation of those provisions—they must show, at a minimum, that these provisions have an unconstitutional impact on at least a “large fraction” of Texas women of reproductive age. Such a situation could result if the clinics able to comply with the new requirements either lacked the requisite overall capacity or were located too far away to serve a “large fraction” of the women in question.

Petitioners did not make that showing. Instead of offering direct evidence, they relied on two crude inferences. First, they pointed to the number of abortion clinics that closed after the enactment of H. B. 2, and asked that it be inferred that all these closures resulted from the two challenged provisions. Second, they pointed to the number of abortions performed annually at ASCs before H. B. 2 took effect and, because this figure is well below the total number of abortions performed each year in the State, they asked that it be inferred that ASC-compliant clinics could not meet the demands of women in the State …

While there can be no doubt that H. B. 2 caused some clinics to cease operation, the absence of proof regarding the reasons for particular closures is a problem because some clinics have or may have closed for … reasons other than the two H. B. 2 requirements at issue here. [For example, in 2011], Texas passed a law preventing family planning grants to providers that perform abortions and their affiliates. [P]etitioners expert admitted that some clinics closed “as a result of the defunding.

Neither petitioners nor the District Court properly addressed [this and other reasons] in assessing causation—and for no good reason. The total number of abortion clinics in the State was not large. Petitioners could have put on evidence about the challenged provisions’ role in causing the closure of each clinic, and the court could have made a factual finding as to the cause of each closure ….

Even if the District Court had properly filtered out immaterial closures, its analysis would have been incomplete for a second reason. Petitioners offered scant evidence on the capacity of the clinics that are able to comply with the admitting privileges and ASC requirements, or on those clinics’ geographic distribution. Reviewing the evidence in the record, it is far from clear that there has been a material impact on access to abortion.

On clinic capacity, the Court relies on petitioners’ expert Dr. Grossman, who compared the number of abortions performed at Texas ASCs before the enactment of H. B. 2 (about 14,000 per year) with the total number of abortions per year in the State (between 60,000–70,000 per year). Applying what the Court terms “common sense,” the Court infers that the ASCs that performed abortions at the time of H. B. 2’s enactment lacked the capacity to perform all the abortions sought by women in Texas.

The Court’s inference has obvious limitations. First, it is not unassailable “common sense” to hold that current utilization equals capacity; if all we know about a grocery store is that it currently serves 200 customers per week, that fact alone does not tell us whether it is an overcrowded minimart or a practically empty supermarket. Faced with increased demand, ASCs could potentially increase the number of abortions performed without prohibitively expensive changes. Among other things, they might hire more physicians who perform abortions, utilize their facilities more intensively or efficiently, or shift the mix of services provided. Second, what matters for present purposes is not the capacity of just those ASCs that performed abortions prior to the enactment of H. B. 2 but the capacity of those that would be available to perform abortions after the statute took effect. And since the enactment of H. B. 2, the number of ASCs performing abortions has increased by 50%—from six in 2012 to nine today ….

On this point, like the question of the reason for clinic closures, petitioners did not discharge their burden, and the District Court did not engage in the type of analysis that should have been conducted before enjoining [enforcement of] an important state law.