Whole Women’s Health: A Call for Evidence-Based Regulation of Abortion
Decades ago, the medical profession helped build the public-health case for decriminalising abortion, and the Supreme Court of the United States appealed to medical science in deciding Roe v Wade. In its most recent decision, Whole Women’s Health v Hellerstedt, the Court has again turned to the medical profession to evaluate claims of fact said to justify restrictions on abortion.
The facts at issue in this case do not concern the question of when life begins but instead concern health care delivery. Increasingly, pro-life advocates call for restricting abortion not only to protect unborn life, but also to protect women. That was Texas’s argument for enacting a law that required abortion providers to have admitting privileges at local hospitals and to meet requirements for ambulatory surgical centres. The law, which the state claimed protected women’s health, would have shut down three quarters of the abortion clinics in the state, leaving approximately 10 clinics to serve over 5 million women of reproductive age.
By a 5-3 majority, the Supreme Court struck down the law. Justice Breyer, joined by Justice Kennedy and the Court’s liberal justices, reaffirmed protections for abortion in Roe v. Wade and Planned Parenthood of Pennsylvania v. Casey. States can regulate abortion in the interests of protecting women’s health and in protecting potential life, so long as the regulations do not impose an “undue burden” on women’s right to have an abortion. And “‘[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.’” The Court balanced the benefits and burdens of the admitting privileges and surgical centre requirements, and “conclude[d] that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes.”
When legislators offer reasons for restricting the exercise of constitutional rights, the Court emphasised, judges have an independent duty to examine the facts. Throughout its opinion the Court relied on facts provided by medical professionals in testimony to the District Court and in amicus briefs to the Supreme Court. In evaluating the safety of abortion and other outpatient procedures not singled out for regulation, and in assessing the likely benefits of regulation and its impact on providers and patients, the Court cited facts in briefs filed by the American College of Obstetricians and Gynecologists, the Society of Hospital Medicine, Planned Parenthood Federation of America, and the National Abortion Federation, as well as the testimony of individual doctors and expert witnesses. It concluded that the abortion restrictions Texas had enacted would contribute little discernible health benefit, while closing large numbers of clinics.
“Texas seeks to force women to travel long distances to get abortions in crammed-to-capacity superfacilities. Patients seeking these services are less likely to get the kind of individualized attention, serious conversation, and emotional support that doctors at less taxed facilities may have offered. . . .[T]hese effects would be harmful to, not supportive of, women’s health.”
Was Texas’s women-protective justification for enacting the law genuine? During litigation the law’s supporters talked about their interest in protecting unborn life, as well as women. Texas Governor Greg Abbott objected to the Supreme Court’s decision in just these terms: “The decision erodes states’ lawmaking authority to safeguard the health and safety of women, and subjects more innocent life to being lost.” He added that “Texas’ goal is to protect innocent life, while ensuring the highest health and safety standards for women.”
In requiring evidence-based regulation of abortion, Whole Women’s Health prevents states from confusing justifications for abortion restrictions in this way. In her concurring opinion Justice Ruth Bader Ginsburg bluntly observed “it is beyond rational belief that H.B.2 could genuinely protect the health of women” and quoted Judge Richard Posner’s observation that the Texas law “‘would simply make it more difficult for [women] to obtain abortions.’” The majority, by contrast, stayed close to the facts. Even as it demonstrated that there were few, if any, health benefits justifying the law’s effects on access, the Court offered no conclusions about the state’s purposes. By focusing on the facts, the Court sought to minimise conflict while setting high standards.
The framework in which the Court reviewed health-justified restrictions on abortion calls into question a wide range of laws. Complications from abortion are rare, and yet the procedure is increasingly singled out for intensive regulation that drives up the cost and drives down access. Citing women’s health, states have imposed elaborate building code requirements on abortion providers not imposed on other health-care providers, prohibited off-label use of abortion medications where off-label use of medication is otherwise not restricted, and banned the use of telemedicine to prescribe medication for abortion remotely, as 18 states now do. TRAP laws—targeted regulation of abortion providers—impose requirements on abortion providers not imposed on those who perform health-care procedures of equal or greater risk. For example, as the majority pointed out, Texas required abortion to take place in surgical centres, raising the expense of the procedure and shutting down clinics; but the state imposed no such requirement on colonoscopy, which has a mortality rate 10 times higher than an abortion, or childbirth, whose mortality rate is 14 times higher than abortion.
After Whole Women’s Health, states subjecting abortion providers to burdensome regulation in the name of protecting women’s health will actually have to demonstrate that the law’s benefits to women’s health outweigh its burdens on access.
In weighing the benefits and burdens of health-justified restrictions on abortion, Whole Women’s Health vindicates common sense, and deeper constitutional principle. The Constitution protects a woman’s right to make the ultimate decision whether to carry a pregnancy to term. To protect potential life, the Court’s cases hold, states must dissuade a woman from seeking an abortion, not obstruct her access to the procedure. States may not protect potential life by enacting burdensome, clinic-closing regulations that purport to protect women’s health. In demanding that states engage in evidence-based regulation of abortion, the Supreme Court at one and the same time protects women’s health and autonomy, the regulation of medicine, and the integrity of the law.