Whole Woman’s Health v Hellerstedt (2016)


In 2013, Texas legislators passed House Bill 2 (HB 2), which established two main abortion-related restrictions. First, it required that physicians obtain admitting privileges at a hospital no farther than 30 miles from the clinic where they intended to perform abortions. Secondly, it mandated that all abortion clinics meet the requirements of ambulatory surgical centers (ASCs). ASCs serve individuals who require surgical procedures that do not necessitate the extended aftercare one receives in a hospital. HB 2 mandated that abortion clinics have specified ASC hallway and doorway widths, as well as separate rooms for procedure and recovery. These requirements called for complete building reconstruction and augmentation that many abortion clinics simply could not afford and did not improve the safety of abortion procedures. Under this legislation, 21 of 40 abortion clinics in the state closed, leaving no abortion facilities in the 500 miles between San Antonio and New Mexico. Further, these restrictions did not apply to any other medical procedure or practice relating to women’s health, such as midwifery or gynecology, even though childbirth is 14 times deadlier than an abortion. 

Understanding the health risks that the bill posed, a group of abortion practitioners, accompanied by the private healthcare management company Whole Woman’s Health, sued Texas in a bid to invalidate HB 2. John Hellerstedt, as the Commissioner of the Texas Department of State Health Services, was positioned as the defendant of the case. The lawyers representing Whole Woman’s Health and the practioners argued that these restrictions violated the Due Process Clause of the Fourteenth Amendment by creating an undue burden on those who sought abortions services in Texas. The undue burden Standard was created by The Supreme Court during the 1992 case Planned Parenthood v. Casey. In this case, The Court struck down a Pennsylvania law that required women seeking an abortion to get the permission of a spouse or parent. The Court qualified an undue burden as a substantial obstacle to women seeking an abortion. 


In a 5-4 decision, the Supreme Court ruled that the restrictions enacted by HB 2 placed an undue burden on women seeking abortion services. The majority opinion, written by Justice Stephen Breyer, included two main factors: 1: The restrictions did not make attaining an abortion safer, and 2: The restrictions closed many operational abortion clinics and therefore created a substantial obstacle. In regards to the first factor, the Court found that the most common procedural complications posed by abortions usually occurred after the patient had departed the facility. Thus, regulations mandating hospital admitting privileges, as well as ambulatory surgical center requirements, did not serve to improve the safety of the procedure or benefit the health of the patient. In fact, these restrictions actually stood to worsen the patient’s safety by limiting access to legal abortions. In the eyes of the Court, HB 2 served only to increase the burden associated with obtaining an abortion without providing any medical benefits.  

In a concurring opinion, Justice Ginsburg pointed out that other related procedures, such as childbirth, pose a much greater risk to patients yet are not subject to the same restrictions. Ginsburg went on to explain that this law would not protect women but would endanger them further. Limited access to safe abortion services may result in a surge of unlicensed or rogue abortion procedures that pose a much greater risk.


Justices Thomas, Alito, and Roberts dissented. In his dissent, Justice Thomas argued that plaintiffs cannot petition on behalf of a third party’s constitutional rights, as established in Clark v. Kansas City (1900). By this he meant that it was inappropriate for the abortion practitioners to raise this case on behalf of their patients. Justice Thomas claimed that the court had become too lenient in regard to this precedent, especially in cases concerning abortion. He further claimed that The Court incorrectly applied the undue burden standard to include a consideration of burdens as they relate to procedural benefits. 

In a separate dissent, Justices’ Alito, Roberts and Thomas argued that this case should have been dismissed because it had already been brought before and judged by the United States Court of Appeals. In this dissent, the justices also claimed that the group of abortion clinics in Texas that shut down were not a direct result of HB 2.  


The Court’s ruling on this case established a new framework for understanding the undue burden standard. This updated standard urged courts to not only consider the burdens associated with abortion legislation, but also to weigh these burdens against any possible benefits. This so-called cost-benefit analysis made the undue burden standard more easily applicable across all branches and levels of government. This decision made it clear that any future state mandated abortion restriction had to be rooted in medical safety or procedural enhancement, if they were not then they would be deemed unconstitutional.

Think Further

  1. If the restrictions in House Bill 2 did improve the safety of abortion procedures, do you think The Supreme Court would still have ruled it unconstitutional? Why or why not?
  2. In what circumstance would it not be okay for a plaintiff to petition the court on behalf of a 3rd party?
  3. Why is it important that women have access to safe and legal abortions?


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Learn More

  1. Whole Woman’s Health v. Hellerstredt, syllabus, 790 F. 3d 563 and 598 (2016). https://www.law.cornell.edu/supremecourt/text/15-274.  
  2. “Whole Woman’s Health v. Helleststedt”. Harvard Law Review. (November 10. 2016). https://harvardlawreview.org/2016/11/whole-womans-health-v-hellerstedt/.
  3. Reingold, Rebecca and Gostin, Lawrence. “Women’s Health and Abortion Rights: Whole Woman’s Health v Hellerstedt”. JAMA. (September 6, 2016). https://jamanetwork-com.dartmouth.idm.oclc.org/journals/jama/fullarticle/253720
  4. Paulk, Lauren. “What is an “Undue Burden”? The Casey Standard as Applied to Informed Consent Provisions”. UCLA Women’s Law Journal,vol. 20, no. 1, 2013. https://escholarship.org/uc/item/14f0z1hr