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The Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt is the biggest break pro-choice advocates have gotten in decades. The ruling struck down two major anti-abortion laws in Texas that had closed about half the state’s abortion clinics, and would have closed even more if those laws had been allowed to stand. Many other states have similar laws, and they’re already starting to fall in the wake of the decision.
But these two laws — requiring doctors to have admitting privileges with a nearby hospital, and requiring abortion clinics to become surgical centers — aren’t the only anti-abortion laws out there. Far from it, as my colleague Sarah Kliff explained: States have passed nearly 300 anti-abortion laws since 2010, and most of them are nothing like the Texas laws that were struck down.
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This, Kliff argues, is why the pro-life movement is currently winning: It’s constantly on the offense, testing dozens of new anti-abortion laws at the state level and seeing what sticks, and then spreading those successes to other states by disseminating model legislation. Meanwhile, the pro-choice movement is forced to play defense and fight the new laws through endless court challenges.
All of this is completely true, and we shouldn’t lose sight of this broader picture. But there’s an argument to be made that Whole Woman’s Health could do a lot more than just strike down laws similar to those in Texas. It could be a powerful tool for pro-choice advocates to use in all sorts of future legal challenges.
Yes, abortion opponents will shift their tactics in response to Whole Woman’s Health. But it could be a pretty dramatic shift, one that may not work nearly as well as their most recent strategy: using "women’s health" to justify passing restrictive abortion laws.
Why was "women’s health" an important strategy for the pro-life movement to begin with?
Abortion opponents maintain that laws like the ones in Texas were necessary because they made abortion safer for women. Doctors adamantly disagreed that this was the case, but it didn’t matter. "Women’s health" was always the stated justification for passing laws that ended up closing abortion clinics or otherwise restricting access.
Closing abortion clinics was a feature, not a bug, for these kinds of laws. Many of their supporters knew that, but it wasn’t always stated explicitly. Sometimes it was, though, as when Texas Gov. Greg Abbott asserted Monday in response to the ruling that Texas’s "goal is to protect innocent life."
But when abortion is a constitutionally protected right, it’s a big problem to pass laws that are specifically designed to keep women from getting one.
When the Court upheld Roe v. Wade in its 1992 Planned Parenthood v. Casey decision, it did so with caveats — states could now pass laws intended to protect fetal life before viability, which they couldn’t under Roe. States could also pass laws to protect "women’s health."
But even though fetal life could be considered, there were still serious limits to what states could do to protect it. States can try to convince a woman not to get an abortion by mandating counseling or waiting periods beforehand. But because abortion is still a right for women, states cannot place "substantial obstacles" that put an "undue burden" on a woman’s ability to actually get an abortion.
That’s why "women’s health," not fetal life, became the most important tool for the pro-life movement after Casey. It was a backdoor way of sneaking in restrictions that otherwise wouldn’t pass the constitutional smell test. And because the "undue burden" test that Casey established was so vague, it wasn’t always easy for pro-choice advocates to challenge new "health" restrictions as being too burdensome.
Why does the Supreme Court’s new ruling undermine this strategy?
The problem with trying to pass laws to make abortion safer is that abortion is already very safe. First-trimester abortion has dramatically lower rates of major complications than even routine procedures like wisdom teeth removal or colonoscopies. Later abortions are a bit riskier, but still not as risky as childbirth.
Yet before Whole Woman’s Health, courts didn’t necessarily have to consider how effective "women’s health" laws would actually be at protecting women’s health. Now they do — and that could throw a wrench into the pro-life movement’s most successful strategy.
"My big takeaway from the decision is that evidence matters," said Elizabeth Nash, state issues manager at the Guttmacher Institute, a think tank that studies reproductive health and rights. "You get to evaluate the evidence: does the restriction benefit women at all? And if it does, then what are the burdens women are facing?"
The idea of actually weighing evidence in a court shouldn’t be revolutionary, but it is when it comes to abortion. In upholding the Texas laws, the Fifth Circuit Court of Appeals basically argued that it wasn’t the court’s place to judge the quality of evidence that lawmakers used to justify passing a bill.
Casey implicitly rejected this idea — but Whole Woman’s Health turned that into an explicit, resounding "nope." The notoriously wishy-washy "undue burden" test now has more teeth. Bad laws with good intentions don’t necessarily get a pass; you have to prove that a law’s benefits outweigh its burdens.
How could the new ruling affect other anti-abortion laws?
It’s hard to say right now what the full impact of Whole Woman’s Health will be on other laws that don’t look exactly like the two restrictions that were struck down in Texas.
But it’s hard to imagine this ruling won’t reach beyond those two laws. Whole Woman’s Health didn’t just strike down specific laws; it did so in a methodical way that clarified how courts should be thinking about abortion laws more broadly.
If a law’s burdens to abortion access vastly outweigh its benefits to health or other relevant factors, then a law could be in constitutional trouble. And there are a lot of abortion restrictions, other than ambulatory surgical center and admitting privilege requirements, whose burdens to abortion access arguably outweigh their health benefits:
- Restrictions on the abortion pill
Texas and many other states place severe restrictions on medication abortion, and on whether doctors can prescribe it remotely using telemedicine. If pro-choice advocates were able to establish that the harms of these restrictions (like reduced access to abortion for women in rural areas) outweighed their benefits, there could be a case to strike them down.
- Waiting periods, "informed consent" counseling before an abortion, and parental notification laws
Planned Parenthood v. Casey did uphold laws like these that were designed to discourage women from having an abortion. But that was more than 20 years ago, Nash said, and things have changed a lot since then.
Waiting periods, in particular, have become a lot more burdensome for women. Casey upheld a 24-hour waiting period in Pennsylvania, but that could include a phone counseling session. These days, women often have to book two in-person appointments instead of just one, and the waiting period can be as long as 72 hours — not including weekends.
"Informed consent" counseling laws have also gotten harsher. They often force doctors to lie to their patients about the risks of abortion, and to administer medically unnecessary ultrasounds.
And if minors don’t want to comply with parental notification laws for safety or other reasons, the judicial bypass process can be a legal labyrinth that violates a minor’s privacy. Minors might even have to face a state-appointed lawyer for their fetus.
In short, anti-abortion laws have gotten more burdensome than some on the Supreme Court could have probably dreamed of when they ruled on Casey. It’s conceivable that even parental notification laws — the only abortion restriction that a majority of Americans supported in a recent Vox poll — could warrant new legal scrutiny after Whole Woman’s Health.
- 20-week abortion bans and dilation and evacuation (D&E) procedure bans
Many states have passed a ban on abortions after 20 weeks of pregnancy, and a more recent trend is banning D&E, which is the safest and most common method of second-trimester abortion.
Both of these laws fly in the face of Roe. Twenty-week bans prohibit abortion before a fetus is viable, and D&E bans effectively do the same thing. Courts have blocked some of these laws, but not all of them have faced a court challenge yet.
Whole Woman’s Health probably won’t be a better argument against these bans than Roe. But Whole Woman’s Health could strengthen the pro-choice case by urging courts to consider how these bans harm women. And it could embolden lawyers to bring more court challenges — especially if Supreme Court vacancies start getting filled by more pro-choice justices.
- Bans on insurance coverage or public funding for abortion
Most states restrict insurance coverage of abortion in one way or another, as does the federal government via the Hyde amendment. These would be a lot tougher to challenge in court than other restrictions, since the Supreme Court upheld Hyde by arguing that poverty, not policy, is what restricts low-income women’s access to abortion when public funds don’t cover abortion.
But pro-choice groups have argued for decades that these bans cause demonstrable harm to low-income women, and momentum is growing in the Democratic party to repeal funding bans like Hyde. It’s not inconceivable that the courts could turn around on this issue too, if presented with a strong enough case that the harms of these bans outweigh their benefits.
Bottom line: We don’t know yet how far Whole Woman’s Health will reach, and we don’t know what its limits will turn out to be. But it could be a big, tide-turning deal for the pro-choice movement.
