At the Court: Women’s Rights At Stake

Taken from the May/June 2016 issue of The Women's Health Activist Newsletter.

Whole Woman’s Health v. Hellerstedt

This case challenges a Texas law, House Bill 2 (HB 2),1 which requires any clinic providing abortion services to meet the same hospital-like building standards required for ambulatory surgical centers. It also requires doctors who provide abortions to have admitting privileges at a hospital within 30 miles from where they perform the procedure.

In the 1992 Planned Parenthood v. Casey decision, a divided U.S. Supreme Court reaffirmed Roe v. Wade’s “core holding,” recognizing a woman’s constitutionally protected right to choose to have an abortion.2 The Court held that states can impose restrictions on this right, as long as the restrictions do not impose an “undue burden” on the woman. Under Casey, a state cannot implement a law with either the “purpose or effect” of imposing a “substantial obstacle” to a woman seeking a pre-viability abortion.3

Texas claims that HB 2 is needed to protect women’s health and safety. The Center for Reproductive Rights (CRR), which is representing the Texas clinics, says the reality is exactly the opposite. It argues that the burdensome requirements are medically unnecessary and fail to promote the safety of abortion care or a woman’s health (abortion is, in fact, already one of the safest and most common medical procedures). Instead, the requirements are designed to shut down abortion clinics, and thereby reduce access to legal abortions. Indeed, leading medical experts, including the American Medical Association and the American College of Obstetricians and Gynecologists, submitted an amicus curiae (friend-of-the-court) brief to the Court opposing HB 2. Their brief makes clear that the Texas requirements are contrary to accepted medical practice, unsupported by scientific evidence, and not related to the quality or safety of abortion-related medical care.4

If HB 2 goes into effect, fewer than 10 abortion facilities will be able to comply with the onerous regulations in the entire state of Texas. In a state with 5.4 million women of reproductive age, HB 2 would shutter most abortion clinics, forcing many women to travel more than 150 miles to the nearest abortion provider. Even more, if the Court upholds the Texas restrictions, similar (and possibly even more onerous measures) will be introduced and implemented elsewhere in the country. According to the Guttmacher Institute, between 2011 and 2015, 288 abortion-related restrictions were enacted by the state legislatures.5

Justice Scalia’s recent death is likely to impact the Court’s decision. If the four liberal justices (Justices Ginsburg, Breyer, Kagan, and Sotomayor) decide for the clinics (i.e., against the restrictions), and Justice Kennedy joins the conservatives (Chief Justice Roberts and Justices Thomas and Alito) in support of Texas (i.e., upholding the restrictions), the Court will split 4-4. If this happens, the Court has a few options. It could decide to let stand the Fifth’s Circuit’s decision that CRR is appealing; this decision, which upheld HB 2, would apply to the states in the Fifth Circuit (Texas, Louisiana, and Mississippi). But, the decision would not set national precedent. Alternatively, the Court could decide not to issue a decision at all and, instead, hold the case until the 2016-2017 term or when Congress confirms a ninth justice.

If, instead, Justice Kennedy joins the Court’s liberal justices, the Court could issue a 5-3 decision in favor of the clinics and against HB 2. The case would then set nationwide precedent. Its precise impact—in Texas and across the country; for abortion care and in the other contexts — will depend on the breadth or narrowness of the majority’s ruling.

Zubik v. Burwell

The other case before the Court is Zubik v. Burwell — a consolidation of seven lawsuits by non-profit organizations bringing yet more challenges to the Affordable Care Act (ACA) and the contraceptive coverage requirement.6 To date, over 100 lawsuits challenging the contraceptive coverage requirement have been filed in Federal courts across the U.S.

The ACA’s contraceptive coverage rule requires most new health plans to cover all Food and Drug Administration-approved contraceptive methods, sterilization, and related education and counseling without cost-sharing (no co-pays, deductibles, or co-insurance). Federal regulations exempt houses of worship from the requirement. Women who get their insurance from these exempt “religious employers” will have insurance policies that do not cover contraception.

Other non-profit organizations with religious affiliations are offered an “accommodation” to the requirement. Under the accommodation, these entities can opt-out of covering contraception in their employer- or school-based health policies. The objecting entity can take advantage of the accommodation by filling out a form that serves as notice of its religious objection. The insurer then removes contraception from the non-profit’s health plan. Federal rules make the insurer financially responsible for the employees’ contraception. (For an overview of this issue, see the Sept/Oct 2015 issue of the WHA, “What to Do If Your Employer Is a Religious Refuser.”) (The Supreme Court addressed challenges to the contraceptive coverage requirement by for-profit employers in 2014.)

Yet — despite the numerous allowances the government has made to address the employers’ religious beliefs — the non-profits bringing these lawsuits remain unsatisfied. They object to even providing notice of their objection, arguing that doing so makes them “complicit” in facilitating contraceptive coverage. Their lawsuits claim that the accommodation violates the Religious Freedom and Restoration Act, a Federal statute that says the government cannot “substantially burden a person’s exercise of religion” unless the government’s action “is the least restrictive means” of furthering a “compelling government interest.”7

The government maintains that the notification requirement is not burdensome. By filling out a form, an objecting employer can relieve itself of any obligation to cover contraception. Instead, the government uses its authority to ensure that women receive contraception through a third-party insurer or administrator.

If these challenges are successful, employers could make it difficult, perhaps even impossible, for women to obtain and/or use health insurance coverage for contraception. Employers would be allowed to impose their beliefs on women, and could create a situation where their employees simply cannot afford to access contraception, increasing their likelihood of unintended pregnancy.

To date, 8 out of 9 Federal appellate courts that have considered challenges to the accommodation have disagreed with the non-profits and have upheld it.8 The Eighth Circuit is the only circuit to have sided with the non-profits.

If the Supreme Court splits 4-4, it could decide to let the lower court rulings stand, creating a legal patchwork across the country. Women would likely have coverage of essential contraceptive care in every state in the U.S., unless they live within the Eighth Circuit (Arkansas, Iowa, Minnesota, Missouri, and Nebraska). Because there are still dozens of other similar lawsuits still pending, however, the issue will likely find its way back to the Court in the future. Alternatively, as with Whole Woman’s Health, if the Court splits 4-4, it could decide to defer a decision.

If, on the other hand, Justice Kennedy sides with the liberal justices, he would provide the decisive fifth vote to uphold the accommodation, setting nationwide precedent (and, hopefully, laying this issue to rest for once and for all).

A lot is at stake for women: the right to receive abortion and contraceptive care and to make their own health care decisions. These cases underscore the pivotal role that the Supreme Court plays in our lives. And, Justice Scalia’s death raises the stakes of the 2016 presidential election.

Dipti Singh, J.D., is a NWHN Board member.

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1. Whole Woman’s Health v. Hellerstedt, Case No. 15-274 (S.Ct. 2016).

2. See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 845-46 (1992).

3. Id. at 846, 877-78.

4. See Brief of Amici Curiae ACOG et al., Whole Woman’s Health v. Cole, Case No. 15-274 (Oct. 5,  2015).

5. Elizabeth Nash et al., Guttmacher Institute, Laws Affecting Reproductive Health and Rights: 2015 State Policy Review, available at

6. Nos. 14-1418, 14-1453, 14-1505, 15-35, 15-105, 15-119, & 15-19.

7. Religious Freedom Restoration Act of 1993, 42 U.S.C. §§2000bb et seq.

8. Laurie Sobel & Alina Salganicoff, Kaiser Family Foundation, Issue Brief: Contraceptive Coverage at the Supreme Court Zubik v. Burwell: Does the Law Accommodate or Burden Nonprofits’ Religious Beliefs? (Feb. 2016, Updated Mar. 2016).