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Professor Helfman Writes on Whole Women’s Health v. Hellerstedt

Posted on Monday 6/27/2016

Associate Professor of Law Tara Helfman’s commentary on the Supreme Court’s recent decision in Whole Women’s Health v. Hellerstedt:

Today’s ruling in Whole Women’s Health v. Hellerstedt marks the Supreme Court’s latest attempt to interpret the complicated legacy of Roe v. Wade.  Ever since the landmark 1973 decision, which recognized a constitutional right to abortion, the Supreme Court has been called upon to balance the individual reproductive rights of women with states’ interest in ensuring that abortions are performed safely and with all due regard for the health of the patient.  

At issue in Hellerstedt was the constitutionality of Texas regulations requiring that abortion facilities within the state meet all the minimum standards of an ambulatory surgical center and that physicians performing abortions have active admitting privileges at nearby hospital.  Putatively a measure to protect the health of female patients, the law drew fire from reproductive rights advocates who claimed that that law was actually passed to regulate abortion providers out of existence in the state.  

Applying the rule of Planned Parenthood v. Casey (1992), a majority of the Court found that the Texas statute violated the constitutional rights of women because “neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes.”  In a short but incisive concurring opinion, Justice Ginsburg noted, “it is beyond rational belief that [the Texas law] could genuinely protect the health of women, and certain that the law would simply make it more difficult for them to obtain abortions.” 

The dissenting justices took issue with the ruling primarily on procedural grounds. The plaintiffs in the case had litigated their claim unsuccessfully in 2013, but renewed the same claim in an attempt to take a second bite at the apple.  Ordinarily, such a case would be dismissed as res judicata (a settled matter) but the majority made an exception in Hellerstedt.