Taking Abortion Rights Seriously: Whole Woman's Health v Hellerstedt
| Author | Kate Greasley |
| DOI | http://doi.org/10.1111/1468-2230.12256 |
| Date | 01 March 2017 |
| Published date | 01 March 2017 |
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CASES
Taking Abortion Rights Seriously: Whole Woman’s
Health vHellerstedt
Kate Greasley∗
In Whole Woman’s Health vHellerstedt the Supreme Court of the United States passed down its
most important decision on abortion for just under a decade. By a majority of 5-3, the Court
ruled that two provisions in a Texas law regulating abortion on grounds of women’s health were
constitutionally invalid, placing a ‘substantial obstacle’ in the wayof women seeking to exercise
their right to abortion. This comment delineates the key ways in which the Court’s application
of the standard of constitutional review under Planned Parenthood vCasey (1992) to the Texas
provisions marks a landmark development for the protection of the constitutional right to
abortion established in Roe vWad e, not the least by making clear that state abortion regulations
which cite ‘women’s health’ justifications should not pass constitutional review where those
justifications lack a credible factual basis.
‘TRAP’ LAWS AND HOUSE BILL 2
Whole Woman’s Health vHellerstedt1(Whole Woman’s Health) is without doubt
the most important US Supreme Court decision on abortion in almost a decade,
and arguably the most important since the Court’s fundamental restatement of
the abortion right in Planned Parenthood vCasey (Casey) in 1992.2At the end of
its term in June last year, the Court ruled by a majority of 5-3 to strike down
as unconstitutional two provisions in a 2013 Texas law regulating abortion on
the ground that they failed to meet the Casey standard of constitutional review
by placing an ‘undue burden’ on Texan women seeking abortions. The pro-
visions in question were an ‘ambulatory surgical center (ASC) requirement’,
which effectively required abortion clinics to meet the design standards of med-
ical centres intended for more complicated, hospital-level treatments, and an
‘admitting-privileges requirement’, which demanded that doctors in abortion
clinics have standing agreements with doctors in nearby hospitals that would
allow them to have abortion patients admitted in the event of complications,
rather than presenting at an emergency room and being admitted the usual way.
Both of these requirements are extremely difficult for abortion clinics to meet.
So much so, the petitioners argued, that the effect of their enforcement would
be to close down a great many abortion clinics, obstructing abortion access for
a large number of Texan women.
∗Lecturer in Law, University College London. With thanks to Susan Hays for helpful guidance.
1 579 US___ (2016). The judgment can be found at https://www.supremecourt.gov/opinions/
15pdf/15-274_p8k0.pdf (last accessed 21 November 2016).
2Planned Parenthood of Southeastern Pennsylvania vCasey 505 US 833 (1992).
C2017 The Author.The Moder n Law Review C2017 The Modern Law Review Limited. (2017) 80(2) MLR 325–351
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
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