Whole Woman’s Health v. Hellerstedt: Finally, Facts Matter

Tex-Supremes BlogOn Monday, June 27, 2016, the Supreme Court decided that Texas HB2 was unconstitutional, eliminating requirements for Texas doctors to have hospital admitting privileges near their clinics and for abortion clinics to become surgical facilities. Many fine summaries of this landmark decision popped up within hours of the decision. See Planned Parenthood’s press release and “The Court once again makes the ‘undue-burden’ test a referendum on the facts” on SCOTUS Blog.


On Monday, the Supreme Court demanded that laws be supported by facts.


What struck me most about the majority opinions written by Justices Breyer and Ginsburg was the lack of assertion and conjecture so often found in the court’s previous abortion case decisions. Recall Justice Kennedy’s 2007 Gonzales v. Carhart opinion upholding Congress’ Partial-Birth Abortion Act of 2003: “We find no reliable data” that abortion causes women emotional harm, but we find it nonetheless “self-evident” and “unexceptional to conclude” that “some women” who choose to terminate their pregnancies suffer “regret,” “severe depression,” “loss of esteem,” and other ills. “Some women”? Did we really uphold a law based upon this kind of neo-paternalistic, fuzzy thinking?

Not this time out. The Supreme Court put future litigants on notice: Facts matter, science matters, logic matters, common-sense inference matters. Unsupported assertions? Nah. Consultants parading as scientists? Not so much. In workmanlike fashion, dealing with abortion in a frank and unapologetic way, the majority read into law 15 separate District Court findings of fact gleaned from stipulations, depositions, and testimony. Further, the court chastised Texas for “attempting to label an opposing expert witness, Doctor Grossman, as irresponsible.” Breyer writes, “making a hypothesis — and then attempting to verify that hypothesis with further studies, as Dr. Grossman did — is not irresponsible. It is an essential element of the scientific method. The District Court’s decision to credit Dr. Grossman’s testimony was sound, particularly given that Texas provided no credible experts to rebut it.” Wow — The Supremes defend the scientific method. Color me happy.  Continue reading