Whole Woman’s Health v. Hellerstedt (formerly Whole Woman’s Health v. Cole)

The brief argues that landmark decisions vindicating the rights of LGBT people compel the conclusion that the constitutional right to choose to have an abortion finds protection under the Equal Protection Clause as well as the Due Process Clause. Courts must scrutinize closely the legislative justifications for abortion restrictions that unduly burden women, not only because the Due Process Clause requires it, but because the Equal Protection Clause does, too.

The brief also argues that women who exercise their constitutional right to abortion experience stigma and discrimination, not unlike the stigma and discrimination experienced by lesbian, bisexual, gay and transgender people, causing many to feel as though they must conceal that they have had an abortion—keeping them “in the closet” and preventing them from advocating effectively on their own behalf in legislatures.

Courts have recognized this dynamic in cases involving lesbian and gay people by scrutinizing closely legislation targeting them. A similar dynamic exists here, and equality principles similarly require courts to scrutinize closely the legislative justifications for abortion regulations to determine whether they serve their stated purposes, and whether those purposes have a basis in fact.

The case involves a challenge to two provisions of HB2, a Texas anti-abortion bill that passed in July 2013:

1. a requirement that a physician performing or inducing an abortion have admitting privileges at a hospital located no more than 30 miles from the location where the abortion is induced; and
2. an ambulatory surgical center (ASC) licensing requirement, which mandates that abortion clinics meet structural and operational standards appropriate for mini hospitals.

These provisions do not enhance patient safety or health, and serve only to make it harder for women to end a pregnancy. If allowed to go into effect, these provisions would force the vast majority of Texas abortion clinics to close.