Whole Woman's Health v. Hellerstedt and What It Means to Protect Women

Abstract

This chapter tells the story of Whole Woman’s Health v. Hellerstedt, the 2016 case in which the Court invalidated a Texas law (H.B. 2) that imposed onerous regulations on abortion providers — and not on providers of other medical procedures of equal risk — in the name of protecting women’s health. The chapter focuses not only on the Court’s decision, but on actors such as Americans United for Life (AUL), an influential advocacy group partly responsible both for H.B. 2 and for the broader constitutional strategy that produced it. AUL has been tremendously successful in restricting women’s access to abortion in recent years by pursuing an incremental strategy that aims to “hollow[] out Roe,” not by challenging it directly but by promoting ever-stiffer abortion regulations and persuading courts to weaken constitutional protection for the abortion right. One of the chief ways AUL has pursued these goals is by casting abortion regulation as woman-protective, asserting that such regulation shields women and fetuses alike from a greedy and unscrupulous abortion industry. During the legislative debates over H.B. 2, legislators opposed to the law disputed that it was protective of women. They argued that there were no legitimate health justifications for the law, that it would actually hurt women by driving reproductive healthcare clinics out of business, and that the state’s poor track record when it came to protecting women’s health undermined its claim to be acting for that reason here. The central question in Whole Woman’s Health was whether the Court would defer to the legislature’s assertion that it was acting to protect women’s health or whether it would look to see whether the controverted regulation actually yielded health benefits. The Court did the latter: It examined whether Texas’s law actually served the state’s interest in protecting women’s health, and how the law affected women’s ability to exercise the abortion right. By scrutinizing the law and finding that the balance of interests weighed heavily in favor of invalidation, the Court handed AUL and other anti-abortion forces a defeat. But it did not take long for those forces to regroup, and it is not at all clear that they will lose the broader battle over abortion rights in the coming decades.

Keywords: abortion, reproductive rights, women's health, Roe, Casey, Whole Woman's Health, Fourteenth Amendment, health care, pro-life, undue burden