"How do we persuade a woman not to have an abortion? As always, we must persuade her with love." - BLESSED TERESA OF CALCUTTA

Whole Woman’s Health v. Hellerstedt (June 27, 2016)


On June 27, the Supreme Court, in a 5-3 opinion penned by Justice Breyer, struck down a Texas law that had required abortion clinics to meet the safety standards of ambulatory surgical centers, and had required doctors performing abortions to have hospital admitting privileges. This law was enacted to protect women’s health. Whole Woman’s Health v. Hellerstedt, No. 15-274 (U.S.). Chief Justice Roberts and Justices Alito and Thomas dissented.


USCCB, Texas Catholic Conference And Other Christian Groups File Amicus Brief To Support Regulations Protecting Women’s Health And Safety In Abortion Clinics

February 2, 2016
WASHINGTON—The Office of General Counsel of the U.S. Conference of Catholic Bishops (USCCB) filed an amicus curiae brief in the U.S. Supreme Court, February 1, on behalf of USCCB, the Texas Catholic Conference and several Christian partners in support of a Texas law mandating health and safety standards protecting women who undergo abortions. Other groups joining the brief include the National Association of Evangelicals, the Lutheran Church-Missouri Synod, the Ethics & Religious Liberty Commission of the Southern Baptist Convention, and the Southern Baptists of Texas Convention. The case is Whole Woman’s Health v. Hellerstedt, currently before the U.S. Supreme Court.

“There is ample evidence in this case that hospital admitting privileges and ambulatory surgical center requirements protect women’s lives 5486338003_22baa78f1b_band health,” said the brief. “When such requirements are not enforced, abuses detrimental to women’s lives and health arise.”

The brief noted that some abortion clinics have declared the standards too strict, although the standards are similar to those issued by the abortion industry. It added that abortion providers “should not be allowed to rely upon their own failure to comply with health and safety laws” as a reason to strike such laws down. The brief said the providers’ resistance to such regulations is not in the best interests of women’s health and safety. It also noted that over 40 years of precedent, including the Court’s 1992 decision in Planned Parenthood v. Casey, reaffirms that states may regulate abortion to protect maternal life and health.

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Talking Points

Talking Points on SCOTUS Decision

  • The majority opinion is one more tragic instance of “abortion distortion”
    — the tendency of courts to stray from the rules usually used in deciding cases when the underlying dispute involves abortion.
  • This is a significant setback for both women’s health and the pro-life movement.
  • The Court has rejected a common-sense law protecting women from abortion facilities that put profits above patient safety.
  • The law simply required abortion facilities to meet the same health and safety standards as other ambulatory surgical centers
    — standards like adequate staffing, soap dispensers, and basic sanitary conditions.

It required abortion doctors to have admitting privileges at nearby hospitals, and that hallways be wide enough to allow emergency personnel through with stretchers, should a life-threatening emergency arise.

  • “Abortion claims the lives of unborn children,  and too often endangers their mothers, as well.  This ruling contradicts the consensus among medical groups  that such measures protect women’s lives.”
    – Deirdre McQuade, assistant director for pro-life communications
  • The abortion facility’s name in this case (“Whole Woman’s Health”) is ironic.  The Court’s ruling has essentially reduced women’s health to little more than access to abortion.

Since the Court struck down the Texas law,  sub-standard clinic conditions may remain in place,  with no real back-up plan for women whose abortions have serious complications.

  • Abortion is not mainstream medicine  – indeed, it’s not medical care at all, as it neither heals nor cures.
  • It’s time to make abortion unthinkable.

About Dr. Kermit Gosnell (mentioned multiple times in WWH v. Hellerstedt)

On May 13, 2013, West Philadelphia abortionist Dr. Kermit Gosnell was found guilty of over 200 crimes, including one count of involuntary manslaughter in the death of a woman following an abortion. Women’s lives were endangered in his ill-equipped, unsanitary facility dubbed a “house of horrors” by
the district attorney, Seth Williams.

  • The grand jury concluded that  Gosnell’s gruesome abortion practices would not have occurred  had his Pennsylvania facility conformed to ambulatory surgical requirements  — the same sort of requirements struck down by the Supreme Court  in Whole Woman’s Health v Hellerstedt.
  • Who will protect women from unscrupulous abortionists now?

General Talking Points on Abortion

  • When a woman seeks an abortion, she may very well be in a panic.  If a woman’s experiencing a difficult pregnancy, the solution is to end the difficulty, not the pregnancy!
  • If you know of someone struggling with a challenging pregnancy, assure her that help is available at: (provide local pregnancy help center/appropriate diocesan office/local pro-life doctor).
  • Abortion on demand is a huge disservice to women, many of whom come to eventually regret their choice – especially if they were rushed or pressured in some way.
  • If you know someone struggling after involvement in abortion,  assure her/him that confidential help is available at:
    (provide info for local Project Rachel/appropriate post-abortion healing ministry)
  • Our pro-life work has encountered a legal setback.  But, sustained by prayer and the sacraments,  we will continue to fight for an end to abortion, and the protection of women and children, alike.

View or download document of full talking points.

Problems with the Supreme Court’s Decision in Whole Woman’s Health v. Hellerstedt

On June 27, the Supreme Court, in a 5-3 opinion penned by Justice Breyer, struck down a Texas law that had required abortion clinics to meet the safety standards of ambulatory surgical centers, and had required doctors performing abortions to have hospital admitting privileges. This law was enacted to protect women’s health. Whole Woman’s Health v. Hellerstedt, No. 15-274 (U.S.). Chief Justice Roberts and Justices Alito and Thomas dissented.

The majority opinion is one more tragic instance of “abortion distortion”—the tendency of courts to stray from the rules usually used in deciding cases when the underlying dispute involves abortion.

  • In 1992, the Supreme Court concluded that abortion laws are constitutional as long as they do not unduly burden a woman’s decision whether to have an abortion before viability. Planned Parenthood v. Casey, 505 U.S. 833. The majority in WWH claims to be following Casey, but actually substitutes for Casey a novel balancing test in which courts will decide for themselves whether the benefits of regulation outweigh the burdens. Essentially the Court has turned itself and lower federal courts into ex officio medical boards—but only for abortion—denying state legislatures the power to make judgments about what will best protect the health of women seeking an abortion. No procedure performed by a doctor—other than abortion—gets this sort of scrutiny in the federal courts. WWH’s departure from Casey is all the more remarkable because the latter decision claimed to be rooted in the need to follow

As Justice Thomas puts it: “Whatever scrutiny the majority applies to Texas’ law, it bears little resemblance to the undue-burden test the Court articulated in … Casey.” Dissenting op., at 2 (Thomas, J.). “The majority’s undue-burden test looks far less like our post-Casey precedents and far more like the strict-scrutiny standard that Casey rejected, under which only the most compelling rationales justified restrictions on abortion.” Id. at 10.

  • When it upheld federal legislation banning partial-birth abortion, the Supreme Court said that it was not the Court’s job to resolve competing claims of medical experts. Gonzales v. Carhart, 550 U.S. 124, 164 (2007) (“Medical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts”); id. at 163 (“The Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty”). In WWH, there was evidence of the benefits of ambulatory surgical center and admitting privileges requirements, but the majority doesn’t discuss that evidence. See USCCB Amicus Brief at 12-19; see Dissenting op. at 6 (Thomas, J.) (“[T]oday’s opinion tells the courts that, when the law’s justifications are medically uncertain, they need not defer to the legislature, and must instead assess medical justifications for abortion restrictions by scrutinizing the record themselves.”).
  • Ordinarily when faced with a severability clause like the one passed by the Texas legislature, a court will only strike down as much of the law, or as many applications of the law, as are unconstitutional. Here the majority takes the unusual step of striking down the Texas law in its entirety. Justice Alito elaborates:

By forgoing severability, the Court strikes down numerous provisions that could not plausibly impose an undue burden. For example, surgical center patients must “be treated with respect, consideration, and dignity.” Tex. Admin. Code, tit. 25, §135.5(a). That’s now enjoined. Patients may not be given misleading “advertising regarding the competence and/or capabilities of the organization.” §135.5(g). Enjoined. Centers must maintain fire alarm and emergency communications systems, §§135.41(d), 135.42(e), and eliminate “[h]azards that might lead to slipping, falling, electrical shock, burns, poisoning, or other trauma,” §135.10(b). Enjoined and enjoined. When a center is being remodeled while still in use, “[t]emporary sound barriers shall be provided where intense, prolonged construction noises will disturb patients or staff in the occupied portions of the building.” §135.51(b)(3)(B)(vi). Enjoined. Centers must develop and enforce policies concerning teaching and publishing by staff. §§135.16(a), (c). Enjoined. They must obtain informed consent before doing research on patients. §135.17(e). Enjoined. And each center “shall develop, implement[,] and maintain an effective, ongoing, organization-wide, data driven patient safety program.” §135.27(b). Also enjoined. These are but a few of the innocuous requirements that the Court invalidates with nary a wave of the hand.

  • Ordinarily when plaintiffs lose a lawsuit, they are precluded from bringing the same lawsuit again. Parties get one bite at the apple, not more. Otherwise litigation would be endless and defendants would be subject to repetitive lawsuits on the same underlying claims and issues. The plaintiffs in WWH filed an earlier lawsuit and lost. They never sought review of the decision in the Supreme Court, so the decision is and should be treated as final. Instead they filed a second And now, departing from the usual rules against re-litigation of previously filed claims, the Court has not only allowed the plaintiffs a second bite at the apple, but has completely invalidated the ambulatory surgical center and admitting privileges requirements.

In all of these ways—the standard of review, deference to legislatures in resolving competing medical claims, enforcement of severability clauses, and preclusion of second claims—the majority departs from traditional rules. As Justice Alito writes: “The Court’s patent refusal to apply well-established law in a neutral way is indefensible and will undermine public confidence in the Court as a fair and neutral arbiter.” Dissenting op. at 3 (Alito, J.).   June 27, 2016

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