Whole Woman’s Health vs. Hellerstedt: What To Know About The US Supreme Court's Next Abortion Case

In what could be one of the most important U.S. Supreme Court decisions about abortion rights since 1973’s Roe v. Wade, the country's highest court is scheduled to hear arguments Wednesday for Whole Woman's Health v. Hellerstedt, which examines state laws restricting the operation of women's health clinics providing abortion services. Specifically at stake is whether legislation in some states has placed an undue burden on women seeking an abortion, which the Supreme Court has ruled unconstitutional.

States across the South, including Texas, Mississippi and Alabama, have passed laws requiring doctors who perform abortions to have admitting privileges at local hospitals. While lawmakers have said the laws are meant to protect women's health, some medical professionals — including the American College of Obstetricians and Gynecologists and the American Medical Association — have argued against the measures, saying they don’t, in fact, make anything safer.

Whole Woman’s Health v. Hellerstedt, however, directly questions HB-2, a 2013 law passed in Texas and upheld in 2015 by the 5th Circuit Court of Appeals requiring doctors performing abortions to have admitting privileges -- the ability to admit patients to hospitals within 30 miles of a clinic without having to first get the permission of another doctor from that hospital.

The Texas law also requires that abortion-providing facilities meet the standards to be ambulatory surgical centers, even if the abortions performed are nonsurgical. A temporary Supreme Court order has thus far blocked this provision statewide and has blocked the admitting privileges requirement in McAllen and El Paso.

So while the new laws don’t limit the right for a woman to get an abortion, per se, the new approach of challenging the way the abortion clinics themselves operate has, in effect, reduced the number of places one can get an abortion.

Protecting women's health was the purported reason for passing these laws, but they have done much more than that: They’ve led to the closing of more than half the state’s abortion clinics across Texas, from 41 three years ago to the present 19. And around half of the remaining clinics could also be shuttered if the law is upheld, cutting the number of providers to as few as nine, some clinic operators have argued.

Most of the clinics now in Texas are located in major metropolitan areas of the state, requiring women to drive long distances to get the procedures they desire and driving up the cost of the procedure itself. Compounded by the Texas requirement that those who want abortions have to wait 48 hours between visits before getting the procedure — thereby requiring a pregnant woman to make the trip twice or stay overnight — it’s not exactly easy to get an abortion. And after a while, women can't. Another Texas regulation passed in 2013 bans abortions after 20 weeks of pregnancy, with limited exceptions.

Many opposing the restrictions have argued that if a woman needs emergency medical attention, they would be admitted to a hospital’s emergency rooms even if a doctor lacks admitting privileges. They have also argued that those getting abortions rarely need to go to the emergency room, as they are often simple procedures. The complication rate of legal abortion procedures is lower than half a percent.

While most people think of Roe v. Wade as the precedent-setting abortion case, Wednesday’s hearing will actually revolve around a 1992 decision: Planned Parenthood of Southeastern Pennsylvania v. Casey. The decision in Planned Parenthood v. Casey allowed states to restrict access to abortion, with the catch that it couldn’t put an "undue burden" on women seeking one.

Further complicating the case is the death in February of the U.S. Supreme Court Justice Antonin Scalia, a linchpin of the high court’s conservative wing and one consistently critical of Roe v. Wade. This puts the court in the compromising position of having eight justices. The court is fairly evenly split between liberal and conservative justices at present, and if there is a tie, the decision of the appellate court would stand, although no national precedent would result.

U.S. Supreme Court Justice Anthony Kennedy is likely to be the deciding factor in this case. While he has chosen to uphold the ruling of Roe v. Wade in the past, he is also known for having supported abortion limitations. He sided with the majority in Planned Parenthood v. Casey, helping to write the decision. Kennedy also wrote the decision on the 2007 case Gonzales v. Carhart, which upheld a partial-birth abortion ban.