What to Know About the Supreme Court's Whole Woman's Health v. Hellerstedt Abortion Case


As the Supreme Court's term winds to a close, abortion rights supporters as well as anti-abortion activists await the decision of a landmark case that could make it harder for people to access abortions in the future.

Whole Woman's Health v. Hellerstedt — the first abortion-related case to reach the Supreme Court in more than 20 years — relates to a law in Texas called HB2.

Abortion rights advocates say the law unfairly targets abortion providers to try and curb the legal right to obtain an abortion, which was granted in the landmark Roe v. Wade case in 1973.

Susan Walsh/AP

The Texas law set stricter standards on both abortion providers and clinics themselves, which has led multiple clinics to close. The law requires abortion providers to have admitting privileges at a hospital within 30 miles, and also mandates the clinics meet standards similar to surgical centers, including the width of hallways.

Whole Woman's Health, a Texas abortion clinic, is arguing that the bill applies an "undue burden" upon them. The "undue burden" standard was set in the 1992 case Planned Parenthood v. Casey that said states can pass laws restricting access to abortion, but not if it is strictly intended to impose a "substantial obstacle" to receiving an abortion before a fetus could safely live outside of the womb. 

Whole Woman's Health says the law will close three-quarters of the state's abortion clinics. The only clinics that would remain would be concentrated in cities, hindering people, especially those living in rural areas, from obtaining safe abortions. 

And they say even with the previous number of abortion clinics before the law was passed, people had to wait three weeks to receive an abortion. Closing down 75% of the state's clinics, they say, would make those wait times even longer — creating an "undue burden." 

The state's department of health, led by John Hellerstedt, argues the law is intended to protect people seeking abortions in the state by ensuring providers have access to hospitals, should complications from the procedure arise, and also ensure providers are qualified to perform the procedure. 

The Fifth Circuit, a conservative-leaning appeals court based in New Orleans, ruled in favor of the Texas law. 

But Justice Antonin Scalia's death complicates the potential outcome of the case. 

If the now eight justices on the court end in a 4-4 split, the Fifth Circuit ruling in favor of the state of Texas will stand. However, a 4-4 split would not set precedent for other cases outside of the Fifth Circuit, which includes many southern states where state legislatures are heavily in opposition to abortion.

All eyes will be on Justice Anthony Kennedy, the swing vote on the court. If he sides with the four liberal justices, abortion rights groups will prevail. 

No matter the outcome, the decision is likely to have implications for the contentious presidential election. If the court splits 4-4, Democrats are likely to push the case as an argument both for Republicans to confirm Judge Merrick Garland, President Barack Obama's nominee to fill Scalia's seat. 

Confirming Obama's pick would not only avoid any evenly split decisions, but it would also provide another liberal-leaning justice for Democrats to potentially avoid court decisions that would curtail abortion rights.

Republicans would likely make the opposite argument, saying the GOP needs to win the presidency to replace Scalia with a conservative justice who would support anti-abortion groups.

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