HB 2 required that physicians who perform abortions have admitting privileges at a hospital within 30 miles of the abortion clinic and also demanded that abortion clinics meet the standards for standalone surgical centers, both medically unnecessary requirements driven by the legislature’s desire to make it nearly impossible for abortion clinics to operate in the state. The United States Court of Appeals for the Fifth Circuit upheld the Texas law, which would have forced more than 75 percent of the state’s abortion clinics to close, without any meaningful inquiry into whether the laws served any health-related purpose. In the Fifth Circuit’s view, even this draconian impact would not result in an undue burden on a woman’s right to an abortion. In June 2015, by a 5-4 vote, the Supreme Court voted to partially stay the Fifth Circuit’s ruling. Whole Woman’s Health appealed to the Supreme Court, filing a petition for a writ of certiorari on September 5, 2015, which the Court granted on November 13, 2015.

On January 4, 2016, Constitutional Accountability Center filed a friend-of-the-court brief in support of Whole Woman’s Health, which argued that the Fifth Circuit’s analysis could not be squared with the text or history of the Fourteenth Amendment, the constitutionally-mandated role of the courts in securing the Constitution’s promise of liberty for all, or the Supreme Court’s precedents. Our brief demonstrated that the text and history of the Fourteenth Amendment protect personal individual rights essential to liberty, dignity and autonomy and require courts to carefully review state legislation impinging on individual liberty.

As we discussed, history shows that the Framers of the Fourteenth Amendment wrote that Amendment to provide broad protections for substantive liberty—not limited to rights enumerated elsewhere in the Constitution—to secure equal citizenship stature for men and women of all races and classes. The Fourteenth Amendment’s guarantee of substantive liberty, together with its guarantee of equality, ensure the full promise of freedom, guaranteeing to all equal dignity in the eyes of the law. In refusing to meaningfully scrutinize state laws that would have closed the vast majority of abortion clinics in Texas, the Fifth Circuit failed to protect the full scope of liberty guaranteed by the Fourteenth Amendment and to fulfill the constitutionally mandated role of courts in securing personal liberty and equal dignity for all.

The Supreme Court heard oral argument on March 2, 2016. On June 27, 2016, the last day of the Term, the Court, as CAC had urged, struck down both the admitting-privileges and the surgical-center requirements of HB 2, holding by a 5-3 vote that they impose an undue burden on abortion access, thus violating the Constitution. Writing for the majority, Justice Breyer stated that the Texas provisions “vastly increase the obstacles confronting women seeking abortions in Texas without providing any benefit to women’s health capable of withstanding any meaningful scrutiny.”