Revisiting the Undue Burden Test: Argument Analysis in Whole Woman’s Health v. Hellerstedt, by Mary Ziegler

The Supreme Court heard argument Wednesday in its first abortion case in a decade, Whole Woman’s Health v. Hellerstedt. Wednesday’s argument revealed a sharp divide about the meaning of Casey’s undue burden test. All of that makes it sound like Hellerstedt could be a really big case, and it might be. Or maybe not. Much has changed since Justice Scalia’s passing, but Justice Kennedy is still at the center of the Court’s abortion jurisprudence, and during Wednesday’s argument, he sent conflicting signals about where Hellerstedt is headed.

The Texas Law

The case asks the Court to evaluate two parts of Texas’s HB 2, a series of targeted regulations of abortion clinics. One of the challenged provisions requires any doctor performing abortions to have admitting privileges at a full-scale hospital within thirty miles. Texas abortion providers challenged this part of the law before it went into effect in 2013. After the Fifth Circuit Court of Appeals sided with Texas, Justice Kennedy joined a five-justice majority allowing the admitting-privileges requirement to take effect in November 2013.

After Texas began enforcing that part of HB2, state lawmakers also adopted rules to implement the other provision before the Court. That part of the statute requires abortion clinics to comply with regulations governing ambulatory surgical centers (ASCs). While this sounds harmless enough, Texas refused to grant waivers or grandfather in already operating clinics—a practice unique to the regulation of abortion providers. To almost no one’s surprise, it turned out that the regulations were quite hard to satisfy, requiring things from the physical overhaul of clinics to the expansion of nursing staff.

When abortion providers went back to court in 2014 and lost again in the Fifth Circuit, the Court temporarily blocked enforcement of the ASC measure. The Court again split five-to-four in deciding to postpone enforcement of the rest of the law, but this time, Justice Kennedy joined the Court’s liberal members. Justice Scalia’s recent passing likely means one less vote to uphold HB 2, but Justice Kennedy has been on either side of rulings temporarily enjoining enforcement of HB 2. It is hard to figure out which way Kennedy is leaning, and Wednesday’s argument offered only a few clues.

The Questions Before the Court

The Court has two questions before it. First, does HB 2 impose an undue burden under Planned Parenthood v. Casey? It is true that almost half the clinics in the state have already closed, and more seem likely to follow. Texas has argued the number of clinic closings is beside the point. If HB2 goes into effect, several clinics in major metropolitan areas will stay open. Women seeking to terminate a pregnancy can either travel to a big city or to neighboring New Mexico. Moreover, Texas argues that mere delays or cost increases women would face in traveling to other clinics are not enough to create an undue burden under Casey.

The clinics invite the Court to take a more comprehensive look at the influence of HB 2. If the entire law goes into effect, the remaining clinics will be unable to keep up with demand. Overburdened providers will force women to wait at least three weeks for an appointment. As a result, the appellants say that HB 2 will have the same effect for many women as an outright ban on abortion.

The second question in Hellerstedt could have higher stakes. Texas claims that lawmakers passed HB 2 to protect women’s health. The problem, though, was that the district court concluded that there was not enough evidence that HB 2 actually does protect women. Texas claims—and the Fifth Circuit agreed—that no such evidence is required. If Texas lawmakers say a law protects women’s health, then the case is closed.

Three Possible Outcomes

At first, court watchers promised the blockbuster abortion argument of the decade could be forgiven at first for thinking they had walked into the wrong room. Stephanie Toti, the attorney for Whole Woman’s Health, spent a lot of time addressing whether the clinics’ claim was precluded, at least when it came to the admitting-privilege provision. Several Justices remembered that the Fifth Circuit had heard and resolved a case on that subject. Toti responded that new facts had emerged since the 2013 litigation—in particular, roughly half the clinics in the state had closed, and Texas had put into place regulations that could cut that number in half again.

Just the same, for Justices unhappy with the idea of a four-four split, res judicata might provide one exit strategy. The Court could conclude that the challenge to the ASC and admitting-privilege provisions were both precluded. After all, as Justice Kennedy noted, nothing technically stopped the clinics from challenging the ASC measure before Texas finalized its regulations. Maybe providers took their single shot at HB2 three years ago and struck out. Or maybe the conservative Justices on the Court were trying to knock out the admitting privileges question. If the Court is figuring out whether HB2 creates an undue burden, as Justice Alito suggested, it would be harder for the providers to win if they could discuss only part of the law rather than the whole thing.

When Toti explained why the clinics’ challenge was not precluded, a second possible outcome became clear. Justice Alito asked Toti to identify direct evidence that HB2 was responsible for those closures. Toti pointed to the timing of the clinic closures (all shortly after HB2 went into effect) and the fact that twelve clinics closed during the week period that the ASC provision was in force only to reopen after the Court stayed its enforcement.

Not happy with Toti’s statistical evidence, Justice Alito wanted more proof of why individual clinics had closed. Justice Kennedy zeroed in on the question of clinic capacity. The petitioners’ brief emphasized that the handful of clinics that could comply with HB2 would be overwhelmed by all of the patients who would come their way. Kennedy asked whether the existing clinics might be able to adapt if given enough time to do so. Or maybe new ASCs would open to take the place of the shuttered clinics.

But Justice Kennedy’s questions about the record did not all cut in favor of HB 2. In questioning Texas Solicitor General Scott Keller, Kennedy noted that surgical (versus drug-based) abortions were up in Texas and down pretty much everywhere else. Perhaps HB2 had made women wait later to terminate a pregnancy, and women had no choice but riskier surgical procedures. Justice Kennedy mused that such an effect “might not be medically wise.”

All of these questions about the record have many wondering if the Court will opt to remand rather than saying anything definitive about HB2. If Justice Kennedy is leaning toward upholding part or all of HB2, this outcome would avoid a four-four decision. And there may be reason that a stalemate might trouble him, particularly if he is unsure what kind of effect HB2 will have.

When the Justices finally got to the meaning of the undue burden test, another fault line surfaced. Chief Justice Roberts suggested that as long as a law had a rational basis, it did not matter whether lawmakers had done anything to advance their stated goals. Either a law created a substantial obstacle, or it didn’t. Toti and Solicitor General Don Verrilli took the position that the Court had to compare the burden imposed by a law against the strength of its justification. Citing the American Medical Association, Verrilli called the rationale for HB2 “frankly flimsy” and even “groundless.”

When it was Solicitor General Keller’s turn, the Court’s liberal Justices seemed to have fun showing just how flimsy the relationship between the means and ends of HB2 really was. Justice Ginsburg wanted to know why it was acceptable for Texas to look at New Mexico clinics in applying the undue burden test. If HB2 is necessary to protect women, why would Texas not worry about sending them to a state with no such regulations? And why did women need to be in surgical centers when they were not having any surgical procedures? Justice Breyer was puzzled about why there was not a single example in the record of women suffering post-abortion complications and being unable to get to a hospital. Justice Kagan pointed out that the law only targeted abortion clinics, even though liposuction has more complications.

All of these questions suggested that the undue burden test means something only if it requires some balancing of the obstacles imposed on women and the importance of the state’s goal. And Justice Kennedy might agree. In a series of questions, Justice Kagan asked Keller if Texas could require abortion clinics to comply with any insanely demanding standard of care. What about a general hospital? Or Massachusetts General Hospital? Here, Kennedy asked whether that “show[ed] that the undue burden test is weighed against what the state’s interest is.”

At a minimum, Kennedy seemed skeptical about Texas’s reading of the undue burden test. So while Kennedy seems pretty open to the idea of a remand, Hellerstedt could still decide something meaningful. Kennedy might reject the notion that the Court should rely on the neutrality and good will of legislators looking out for women. Maybe—as hard as this is to believe—abortion is politically divisive, and some legislators might have things in mind other than women’s health.

As usual, argument in Hellerstedt left everyone guessing about the next chapter in the abortion wars. With the Court set to announce its decision only a few months before the 2016 presidential election, we will all have to stay tuned.