On last week’s episode of All Things Legal, Craig Ashton and Ed Schade discussed the Supreme Court’s decision in the case of Whole Woman’s Health v. Hellerstedt, in which it struck down a Texas law that imposed stringent regulations on abortion facilities in the state.

To start off the discussion, Craig found it necessary to backtrack a bit and explain the Supreme Court’s rationale behind their decision on an earlier case, Roe v. Wade, which legalized abortion throughout the United States in 1973.


A History Lesson on Roe v.  Wade and the 14th Amendment

The court’s decision in Roe v. Wade rested upon the 14th Amendment, which was originally created in response to the abolition of slavery. When suddenly every slave in the country was freed, American states faced some extremely challenging questions, the most important of which was: What rights and protections were they entitled to?

The 14th Amendment indicated that anyone born or naturalized in the United States—including former slaves—was a full citizen, and that citizenship afforded a variety of protections. The amendment spelled out perhaps the most important aspect of these protections:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

105 years after the passage of the 14th Amendment, the Supreme Court carefully examined this text and determined that abortion laws were effectively “abridging the privileges” that women had to control their own bodies. Consequently, those laws were in violation of the 14th Amendment, and thus, were unconstitutional.

Back to Craig: “…At the end of the day, that was what was applied to the decision of a woman’s right to choose, which has got to be equal protection and due process, and women should have a right to their own reproductive decisions within the confines of the right to due process under the 14th Amendment.

“So basically, what they had was a balancing act. To say, ‘Look, there is a woman’s right to her reproductive choices, which is clear. But there’s also a state interest in regards to protecting the potentiality of human life. And so, the only time… the state can really regulate decisions regarding productive choices is in the third trimester, because then at that point there’s a decision whether or not there’s a viable life. There’s also some health risks associated with those decisions [at that point in a pregnancy], and so then the state [can supersede] that reproductive choice.”

How Supposed Health Concerns Were Used to Constrain Access to Abortion

Craig went on to explain that the reasoning set forth by the Roe v. Wade ruling was so strong that most conservative states recognized that finding a way to overturn the ruling would be incredibly difficult, if not impossible. Even if the configuration of the Supreme Court changed to favor more conservative interpretations of the Constitution, it would be difficult for the SCOTUS to ignore the reasoning of Roe v. Wade, and the related precedents set since then.

So rather than attack the issue head on, conservative states have been finding end-routes around the Constitution…

Craig: “What the states have been doing is… changing the rules associated with the [abortion] clinics, to make it very difficult for the clinics—either through zoning or building codes, and also the requirements of the doctors—to… stay in business.

“So what they did in Texas [to sidestep Roe v. Wade was that] under HB 2 was they said that any doctor who is performing abortions must have [admitting] privileges at a hospital within 30 miles. And the problem is that because abortions are so safe, that they never really have to go to a hospital, and in order to get [hospital admittance] privileges, you have to have a minimum number of admittances. And so if your patients are never being admitted to the hospital, you can’t get privileges.”

To get an idea of how safe abortions are: An analysis of nearly 55,000 abortions performed in California for Medicaid beneficiaries found that only 0.03% (1 in more than 5,000) of abortion recipients required emergency treatment at a hospital on the day of the abortion. Even for abortions performed in the second trimester or later, the total complication rate which warranted further intervention at the original clinic—or at a hospital in extreme cases—was 1.5%.

Another study found that the average death rate of mothers during childbirth was 8.8 per 100,000 births. In comparison, the average death rate for women receiving abortions was 0.6 deaths per 100,000. Yet, in spite of births had a mortality rate 14 times that of abortions, home birthing and midwifery are permitted in the state of Texas without the presence of a doctor with hospital admittance privileges, while abortion providers were required to meet a more stringent requirement.

Craig: “The second [way that Texas attempted to circumvent the protections of Roe v. Wade] was that the abortion clinics had to be retrofitted to meet elaborate hospital grade standards, [while clinics that provided] liposuction or colonoscopies [weren’t subject to these requirements].”

In fact, all abortion clinics were required to meet the standards of ambulatory surgical centers, even though most of them only provided medical (nonsurgical) abortions. Such requirements include specifications such as room size and the width of hallways. These specifications exist so that sites performing surgical services had the necessary layout to accommodate the movement of gurneys, surgical equipment, and so on. HB 2 forced all abortion centers to meet these requirements despite the fact that most of them didn’t provide on-site surgical services, and didn’t have the equipment or space to provide them. But if an abortion clinic didn’t have the funds to undertake the construction necessary to meet these requirements, they would be forced to close their doors.

How the Supreme Court Killed HB 2

After outlining the clear inconsistencies in how Texas treated abortion clinics versus other medical service providers, Craig summarized the Supreme Court ruling: “So, the Supreme Court said that is an undue burden… The Supreme Court said, ‘Look… if this is all about safety and health, then colonoscopies are way more dangerous, and birthing is way more dangerous, but you don’t have the same restrictions and the same requirements [for those procedures]. Therefore, this is an undue burden on women’s safety and their health, and their choices, and therefore it does not meet the requirements under the Constitution. You’re violating their 14th Amendment right to due process, and therefore you are in violation of the Constitution. They struck down the entire thing.”

Ed Schade: “Yeah, the majority opinion Breyer wrote [explained that the law was struck down because the restrictions it created served] to ‘vastly increase the obstacles confronting women seeking abortions in Texas without providing any benefit to women’s health capable of withstanding any meaningful scrutiny,’ meaning that it lacked any basis in reason for what they were trying to do, other than to prevent abortions going forward. I mean… this is a moral issue, and the state is in the ‘Bible Belt,’ and they were trying to restrict [abortion] as best they could within the laws, and obviously they did a very bad job, because the law they tried to pass was obviously… unconstitutional.”

The crux of the Supreme Court’s argument was that the Texas law clearly reflected an unequal playing field that betrayed the state’s bias against abortion. As Craig put it, “Bottom line, if you can have a midwife—[despite birth being] 14 times more likely to lead to [death]—have basically no restrictions, and then [require] an abortion clinic to basically have the same configuration as a heart clinic, and [also require] admittance [privileges] within 30 miles, I mean that clearly was meant to limit the constitutional right [of women] to make this decision.”

Other States Seeking to Restrict Abortion Face an Uphill Battle

It’s difficult to fully measure how the law will impact future cases involving abortion rights. The ruling has made it clear that the court is sensitive to inconsistencies in how a state regulates abortions versus other medical procedures. In addition, the court’s majority opinion stated that any court considering the legality of abortion laws must “consider the burdens a law imposes on abortion access together with the benefits those laws confer.” In short, it’s not enough to look at the benefits of such a law, such as perceived health benefits.  Instead, these benefits must be weighed against the opportunity costs that such laws will impose on women.

In fact, it’s likely that this quote from the opinion will spur women and organizations in many states to challenge laws similar to HB 2 that have been passed in other states. It’s likely that federal laws all over the country will be confronted with lawsuits similar to Whole Woman’s Health v. Hellerstedt over the next several years, and abortion opponents will likely have a difficult time showing that more restrictive laws serve any purpose other than making it more difficult for women to obtain abortions.