Texas, Abortion, and the Supreme Court – Part II

[cross-posted at Prawfsblawg]

By Jessie Hill

In this second post on the certiorari petition in Whole Women’s Health v. Cole, I want to consider the likelihood that the Supreme Court will take this case, and if it does, what it is likely to do with it.

I think it’s a very good bet that the Supreme Court will decide to hear this case this Term, perhaps in conjunction with one of the other cases that deals with admitting privileges laws – either Currier v. Jackson Women’s Health Organization, another admitting privileges case, in which the Fifth Circuit actually enjoined an admitting-privileges requirement that would have shut down the last remaining abortion clinic in Mississippi, or Planned Parenthood v. Van Hollen, in which the Seventh Circuit enjoined an admitting-privileges law. However, both of those cases are still at the preliminary-injunction stage, unlike Whole Women’s Health, which was rushed to trial on an expedited schedule. Still, SCOTUS has been holding onto the petition in Jackson Women’s Health Organization since the spring and may well decide to consolidate it with Whole Women’s Health. (No petition has yet been filed in Van Hollen, as that case is back in front of the district court and scheduled for trial.)

There are a lot of reasons for the Court to grant cert in at least one of these cases.

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Texas, Abortion, and the Supreme Court

[cross-posted at Prawfsblawg]

By Jessie Hill

Several Texas abortion providers have filed a petition for certiorari in Whole Women’s Health v. Cole, asking the U.S. Supreme Court to decide on the constitutionality of a Texas state law requiring abortion providers to have admitting privileges at a local hospital and requiring all abortion clinics to qualify as ambulatory surgical centers (ASCs), including requirements that are more demanding than those that apply to other, similar facilities that do not provide abortions. Here is my brief analysis of the legal issues in that case. (Note that this analysis is only of the “undue-burden” issues; there is also a res judicata issue in that case, which I will not analyze.)

The plaintiffs in Whole Women’s Health claim that the admitting-privileges and ASC requirements are unconstitutional because, under the standard identified in Planned Parenthood v. Casey, they impose an undue burden on the right to abortion. There are basically two ways in which these requirements can be seen to impose an undue burden.

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Introducing New Contributor Jessie Hill

jessie_hill_peopleJessie Hill is joining Bill of Health as a regular contributor.

Jessie Hill is the Judge Ben C. Green Professor of Law and Associate Dean for Academic Affairs at Case Western Reserve University School of Law. She teaches and writes in the fields of constitutional law, health law, and law and religion. Her scholarship has been published in the Michigan Law Review, Duke Law Journal, Columbia Journal of Gender and Law, and the Texas Law Review, among others. Prior to teaching, Professor Hill worked at the Reproductive Freedom Project of the national ACLU office in New York, litigating challenges to state-law restrictions on reproductive rights, and then practiced First Amendment and civil rights law with a small law firm in Cleveland. She is a member of the Academic Advisory Board of Law Students for Reproductive Justice and is a frequent lecturer and consultant on reproductive rights issues.