When the U.S. Supreme Court decided Whole Woman’s Health v. Hellerstedt in 2016, there was much cause for celebration. The 5-3 majority gave bite to what had previously been quite ambiguous.
But now we’re seeing the limitations of that 2016 victory. With the Supreme Court possibly on the verge of an anti-abortion majority, lower courts are interpreting the Whole Woman’s Health decision in a very narrow way. We saw it once again this week with a decision by the Fifth Circuit upholding the Louisiana requirement that doctors providing abortions have admitting privileges, one of the same requirements the Supreme Court struck down in Whole Woman’s Health.
The celebration after Whole Woman’s Health was not just because the Court struck down the Texas provisions, but also because five justices attempted to explain what the terms in 1992’s Planned Parenthood v. Casey meant. In that decision, the Supreme Court announced that abortion restrictions are unconstitutional if they create an “undue burden” by placing a “substantial obstacle” in the way of women seeking an abortion.
These terms sounded powerful and eloquent, but were so vague in practice that judges could say that something was or wasn’t too much of a burden or an obstacle based on their own preconceived notions about abortion and reproductive rights. But in Whole Woman’s Health, the Court made two important points about these terms. First, it said that in making the determination about what is an “undue burden,” courts must look to scientific and medical evidence. Second, courts have to weigh the benefits and the burdens of the law, and when there are no “medical benefits sufficient to justify the burdens upon access” that the law imposes, the law is unconstitutional.
Roe has collapsed and Texas is in chaos.
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Using this framework, the Court found that Texas’ requirements that abortion providers must have admitting privileges and conform to ambulatory surgical center standards were unconstitutional because there were no benefits and there were significant burdens. This analysis struck the provisions down, which was why there was so much celebration.
Here’s the limitation of Whole Woman’s Health, though: It didn’t say that all admitting privileges requirements are unconstitutional or that all ambulatory surgical center requirements were unconstitutional. Rather, even though the Court noted that neither was supported by any medical benefit, what the decision said was that based on the facts in Texas, there were substantial burdens imposed by this law that were not outweighed by this almost complete lack of benefit. This was enough to strike down the Texas provisions, but in other states, laws would be assessed based on the local particulars.
The danger of that limitation is apparent in this week’s decision from the Fifth Circuit. That court, one of the most conservative in the country, had had originally upheld the Texas provisions that were struck down in Whole Woman’s Health. This week, it found that, even though Louisiana’s admitting privileges law provided what the Fifth Circuit found were “minimal benefits,” the law was not as burdensome as Texas’ law and was thus constitutional.
In particular, the Fifth Circuit said that the Louisiana law would not result in clinics closing because it was more lax than the Texas law. The fact that some abortion doctors in Louisiana have not obtained admitting privileges is—according to the court—their fault for not applying, rather than the hospitals’ fault for denying them. In fact, the court said that only one doctor had tried to obtain admitting privileges (and that provider could still possibly obtain them from a hospital) and that the evidence shows that hospitals in Louisiana would be willing to extend admitting privileges to the other providers, so there would be no burden.
The court acknowledged one doctor who might be unable to get privileges, but other doctors could cover that doctor’s load, resulting in only a minimal time delay to less than a majority of one clinic’s patients. The court claimed that none of the five clinics open in Louisiana when the law was enacted in 2014 (two have since closed for unrelated reasons) would have to close if this law were implemented and compared that number to the closure of over three-quarters of the more than 40 clinics in Texas as a result of Texas’ provisions. Thus, the court concluded this was not an “undue burden” or “substantial obstacle.”
The decision was 2 to 1, with Judge Patrick Higginbotham (a Reagan appointee) dissenting. He argued that the majority in the case improperly second-guessed the lower court’s finding about how burdensome the law would be and ignored the warnings from Casey and Whole Woman’s Health about “unnecessary health regulations.” He also accused the state of having an “invidious purpose” to “frustrate a woman’s right to choose” in passing the law, something the Supreme Court has said would also make a law unconstitutional.
The lesson from this case shows just how high the stakes are for the Supreme Court confirmation battle. With a precedent like Whole Woman’s Health that lower courts are showing they can read very narrowly (though some are reading it broadly, like in Friday’s win keeping the last clinic in Kentucky open), it’s clear that more guidance from the Supreme Court is going to be needed. If the Supreme Court takes the conservative turn that many of us fear it will, it can eviscerate abortion rights in several states without even lifting a finger. It can refuse to intervene when conservative judges uphold abortion restrictions by reading Whole Woman’s Health narrowly—and thus embolden even more lower court judges to do the same. After all, if the Supreme Court is not going to correct these restrictive decisions, then why not let personal biases against abortion decide the case?
Of course, an activist conservative Supreme Court could do even more damage. Rather than ignoring these lower court decisions upholding abortion restrictions, it could take the case and rewrite abortion law, relaxing the standard from Whole Woman’s Health or even going so far as to overturn Roe.
But what the Louisiana case this week shows is that an anti-choice Court doesn’t have to take such a visible step if it wants to restrict abortion rights. All it has to do is let increasingly conservative lower court judges do their work, making it that much more difficult to access abortion care.