You are here:       
Kenya Law / Blog / Case Summary: Supreme Court Declares Texas House Bill 2’s Abortion Regulations Unconstitutional.

Supreme Court Declares Texas House Bill 2’s Abortion Regulations Unconstitutional.

Supreme Court Declares Texas House Bill 2’s Abortion Regulations Unconstitutional.

Whole Woman’s Health vHellerstedt Commissioner, Texas Department of State Health Services, et al

No. 15-274

Supreme Court of the United States

Roberts, C. J., Breyer, Kennedy, Ginsburg, Sotomayor, Kagan, Ginsburg, Thomas, Alito, Thomas, JJ

June 27, 2016

Reported by Linda Awuor & Faith Wanjiku

Download the Decision

Constitutional Law - Privileges and Immunities- whether the admitting privileges and the surgical-center provisions violated the Constitution’s Fourteenth Amendment on privileges and immunities clause-The Constitution of the United States of America, amendment xiv section 1

Interpretation of Statutes - severability clause- whether courts were required to go through indi­vidual regulations governing surgical centers to see whether they were severable from each other as applied to abortion facilities-House Bill 2, section 1(b)

Brief Facts

In July 2013, the Texas Legislature enacted House Bill 2 (H. B. 2 or Act). The law contained two provisions namely:

a)Admitting-privileges requirement which provided that a physician performing or inducing an abortion had to, on the date the abortion was performed or in­duced, have active admitting privileges at a hospital that was located not further than 30 miles from the location at which the abortion was performed or in­duced.

b)Surgical-center requirement which provided that the minimum standards for an abortion facility had to be equivalent to the minimum standards adopted (un­der the Texas Health and Safety Code section) for ambulatory surgical centers.

In September, before the new law took effect, a group of Texas abortion providers (Planned Parenthood of Greater Tex. Surgical Health Servs. v. Ab­bott) filed an action in Federal District Court seeking facial invalidation of the law’s admitting-privileges provision. In late October, the District Court granted the injunction. But three days later, the Fifth Circuit vacated the injunction, thereby permitting the provision to take effect. The Fifth Circuit subsequently upheld the provision, and set forth its reasons in an opinion released late the following March. In that opinion, the Fifth Circuit pointed to evidence introduced in the District Court the previous October. It noted that Texas had offered evidence de­signed to show that the admitting-privileges requirement would reduce the delay in treatment and decrease health risk for abortion patients with critical complications, and that it would screen out untrained or incompetent abor­tion providers.

The opinion also explained that the Plaintiffs had not provided sufficient evidence that abortion practi­tioners would have likely been unable to comply with the privileges requirement. The Court said that all of the major Texas cities, including Austin, Corpus Christi, Dallas, El Paso, Houston, and San Antonio, would con­tinue to have multiple clinics where many physicians would have or obtained hospital admitting privileges. The Plaintiffs did not file a petition for certiorari in the Court.

On April 6, one week after the Fifth Circuit’s decision, the Petitioners, a group of abortion providers many of whom were plaintiffs in the previous lawsuit, filed the present lawsuit in Federal District Court. They sought an injunc­tion preventing enforcement of the admitting-privileges provision as applied to physicians at two abortion facili­ties, one operated by Whole Woman’s Health in McAllen and the other operated by Nova Health Systems in El Paso. They also sought an injunction prohibiting enforce­ment of the surgical-center provision anywhere in Texas. They claimed that the admitting-privileges provision and the surgical-center provision violated the Constitution’s Fourteenth Amendment.

The District Court concluded that the two provisions would cause the closing of almost all abortion clinics in Texas that were operating legally in the fall of 2013, and thereby create a constitutionally impermissible obstacle as applied to all women seeking a pre-viability abortion by restricting access to previously available legal facilities. On June 9, 2015, the Court of Appeals reversed the District Court’s decision on the merits. It found both provisions constitutional and allowed them to take effect. The Petitioners then appealed to the Supreme Court.


i.Whether the admitting-privileges and the surgical-center provisions violated the Constitution’s Fourteenth Amendment clause on privileges and immunities.

ii.Whether res judicata barred the bringing of facial challenge to the admitting-privileges requirement and awarding of facial relief to the Petitioners.

iii.Whether the claim preclusion barred Petitioners from contending that the surgical-center requirement was unconstitutional.

iv.Whether courts were required to go through indi­vidual regulationsgoverning surgical centers to see whether they were severable from each other as applied to abortion facilities.

Relevant Provisions of the Law

United States Constitution

Amendment XIV

Section 1-Privileges and Immunities Clause

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

House Bill No. 2

Section 1(b)-Severability Clause

The legislature intends that every application of this statute to every individual woman shall be severable from each other. In the unexpected event that the application of this statute is found to impose an impermissible undue burden on any pregnant woman or group of pregnant women, the application of the statute to those women shall be severed from the remaining applications of the statute that do not impose an undue burden, and those remaining applications shall remain in force and unaffected, consistent with Section 10 of this Act.

Section 2-Sec.171.0031.Requirements of Physician;

(a)A physician performing or inducing an abortion:

(1) must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that:

(A) is located not further than 30 miles from the location at which the abortion is performed or induced;

Section 4 (a) – Sec 243.010.Ambulatory Surgical Centers

The rules must contain minimum standards to protect the health and safety of a patient of an abortion facility and must contain provisions requiring compliance with the requirements of Subchapter B, Chapter 171. On and after September 1, 2014, the minimum standards for an abortion facility must be equivalent to the minimum standards adopted under Section 243.010 for ambulatory surgical centers.

Held (with Breyer, Kennedy, Ginsburg, Sotomayor, Kagan JJ concurring)

  1. The doctrine of claim preclusion, the here-relevant aspect of res judicata, prohibited successive litigation of the very same claim by the same parties.Petitioners’ post enforcement as-applied challenge was notthe very same claim as their pre enforcement facial challenge. The Restatement of Judgments noted that development of new material facts could have meant that a new case and an otherwise similar previous case did not present the same claim. Material operative facts occurring after the deci­sion of an action with respect to the same subject matter could in themselves, or taken in conjunction with the ante­cedent facts, have comprised a transaction which could have been made the basis of a second action not precluded by the first.
  2. A valid and final personal judgment for the Defendant, which rested on the prematurity of the action or on the Plaintiff’s failure to satisfy a precondition to suit, did not bar another action by the Plaintiff instituted after the claim had matured, or the precondition had been satis­fied.The Restatement added that, where im­portant human values such as the lawfulness of continu­ing personal disability or restraint were at stake, even a slight change of circumstances could afford a sufficient basis for concluding that a second action could be brought.
  3. Petitioners’ claim in the case rested in significant part upon later, concrete factual developments. Those devel­opments mattered. The Petitioners brought an as-applied challenge to the requirement after its enforcement and after a large number of clinics had in fact closed. The post enforcement consequences of H. B. 2 were unknowable before it went into effect.
  4. When individuals claimed that a particular statute could produce serious constitutionally relevant adverse conse­quences before they had occurred and when the courts doubted their likely occurrence the factual difference that those adverse consequences had in fact occurredcould have made all the difference. The challenge brought in the case and the one in Abbott were not the very same claim, and the doctrine of claim preclusion consequently did not bar a new challenge to the constitutionality of the admitting-privileges requirement.
  5. The Federal Rules of Civil Procedure in rule 54(c) stated that a final judgment could grant the relief to which each party was entitled, even if the party had not demanded that relief in its pleadings. If the arguments and evidence showed that a statutory provision was unconstitutional on its face, an injunction prohibiting its enforcement was proper.Once a case was brought, no general categorical line barred a court from making broader pronouncements of invalidity in properly as-applied cases. Nothing prevented the Court from awarding facial relief as the appropriate remedy for petitioners’ as-applied claims.
  6. The surgical-center provision and the admitting-privileges provision were separate, distinct provisions of H. B. 2. They set forth two different, inde­pendent requirements with different enforcement dates. The Court had never suggested that challenges to two different statutory provisions that served two different functions be brought in a single suit. Lower courts normally treated challenges to distinct regulatory requirements as separate claims, even when they were part of one overarching government regulatory scheme.
  7. The opposite approach adopted by the Court of Appeals required treating every statutory enactment as a single transaction which a given party could only be able to challenge one time, in one lawsuit, in order to have avoided the effects of claim preclu­sion. Such a rule could have encouraged a kitchen-sink ap­proach to any litigation challenging the validity of stat­utes. That outcome was less than optimal, not only for litigants, but for courts.
  8. The Petitioners did not have to bring their challenge to the surgical-center provision when they challenged the admitting-privileges provision in Abbott. The doctrine of claim preclusion did not prevent them from bringing that challenge again.
  9. The State had a legitimate interest in seeing to it that abortion, like any other medical proce­dure, was performed under circumstances that insured max­imum safety for the patient. But, a statute which, while fur­thering a valid state interest, had the effect of placing a substantial obstacle in the path of a woman’s choice could not be considered a permissible means of serving its legit­imate ends. Unnecessary health regulations that had the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion imposed an undue burden on the right.
  10. The surgical-center requirement, like the admitting-privileges require­ment, provided few, if any, health benefits for women, posed a substantial obstacle to women who sought abortions, and constituted an undue burden on their constitutional right to do so.
  11. Severability clauses expressed the enacting legislature’s preference for a narrow judicial remedy. The cases had never required courts to precede application by conceivable application when confronted with a facially unconstitutional statutory provision. A severability clause was an aid merely; not an inexorable command.If a severability clause could have imposed such a requirement on courts, legislatures could easily have been able to insulate unconstitutional statutes from most facial review. It would certainly have been dangerous if the legislature could have set a net large enough to catch all possi­ble offenders, and left it to the courts to step inside and say who could have been rightfully detained, and who could have been set at large. That could, to some extent, have substituted the judicial for the legislative department of the government.Such an approach could have inflicted enormous costs on both courts and litigants, who could have been required to proceed in that manner whenever a single application of a law could have been valid.
  12. The statute was meant to require abortion facilities to meet the integrated surgical-center stand­ards, not some subset thereof. The severability clause referred to severing applications of words and phrases in the Act, such as the surgical-center requirement as a whole. It did not say that courts could go through the individual components of the different, surgical-center statute, let alone the indi­vidual regulationsgoverning surgical centers to see whether those requirements were severable from each other as applied to abortion facilities. Facilities subject to some subset of those regulations did not qualify as surgical centers. The risk of harm caused by inconsistent application of only a fraction of interconnected regulations counseled against doing so.

Held by Justice Ginsburg (concurring)

  1. Complications from an abortion were both rare and rarely dangerous. Abortion was one of the safest medical procedures performed in the United States. Many medical procedures, including childbirth, were far more dangerous to patients, yet were not subject to ambulatory-surgical-center or hospital admitting-privileges require­ments. Given those realities, it was beyond rational belief that H. B. 2 could genuinely protect the health of women, and certain that the law could simply make it more difficult for them to obtain abortions.
  2. When a state se­verely limited access to safe and legal procedures, women in desperate circumstances could resort to unlicensed rogue practitioners, for lack of a better alternative, at great risk to their health and safety. Targeted regulation of abortion providers’ laws like H. B. 2 that did little or nothing for health, but rather strewed impediments to abortion could not survive judicial inspection.

Held by Justice Thomas (dissenting)

  1. The Court struck down two state statutory provi­sions in all of their applications, at the behest of abortion clinics and doctors. That decision exemplified the Court’s troubling tendency to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, was at issue. The very existence of the suit was a jurispruden­tial oddity. Ordinarily, plaintiffs could not file suits to vindi­cate the constitutional rights of others. The Court employed a different approach to rights that it favored. In the case and many others, the Court had erroneously allowed doctors and clinics to vicariously vindicate the putative constitutional right of women who sought abortions.
  2. The Court did not question whether doctors and clinics could be allowed to sue on behalf of Texas women seeking abortions and as a matter of course they could not. The central question under the Court’s abor­tion precedents was whether there was an undue burden on a woman’s access to abortion. But the Court’s permissive approach to third-party standing encouraged litigation that deprived it of the information that was needed to resolve that issue. Precedents encouraged abortion providers to sue and the cases then relieved them of any obligation to prove what burdens women actually faced.
  3. It was astonishing that the majority could discover an un­due burden on women’s access to abortion for those women for whom Texas law was an actual rather than an irrelevant restriction, without identifying how many women fitted that description; their proximity to open clinics; or their preferences as to where they obtained abortions, and from whom. Common sense inferences that such a burden existed were no substitute for actual evidence. There could have been no surer sign that the jurisprudence had gone off the rails than that; after the Court created a constitutional right to abortion because it involved the most intimate and personal choices a person could make in a lifetime, choices central to personal dignity and autonomy, the Court created special rules that ceded its enforcement to others.
  4. In Planned Parenthood of Southeastern Pa v Casey, it was held that a law was unconstitutional if it imposed an undue burden on a woman’s ability to choose to have an abortion, meaning that it had the purpose or effect of placing a substantial obstacle in the path of a woman who sought an abortion of a nonviable fetus.
  5. By rejecting the notion that legislatures, and not courts, had to resolve questions of medical uncertainty, the majority discarded another core element of the Casey framework. When­ever medical justifications for an abortion restriction were debatable, that provided a sufficient basis to conclude in a facial attack that the law did not impose an undue burden. Otherwise, legisla­tures would face too exacting a standard. The majority however, refused to leave disputed medical science to the legislature because past cases placed considerable weight upon the evidence and argument presented in judicial proceedings.Gonzales v Carhartexplained how courts could resolve conflicting positions: by respect­ing the legislature’s judgment.
  6. It was tempting to identify the Court’s invention of a constitutional right to abortion in Roe v. Wade as the tipping point that transformed third-party standing doctrine and the tiers of scrutiny into an un­workable morass of special exceptions and arbitrary appli­cations. But those roots ran deeper, to the very notion that some constitutional rights demanded preferential treatment.
  7. The Court had simultaneously transformed judicially created rights like the right to abortion into preferred constitu­tional rights, while disfavoring many of the rights actually enumerated in the Constitution. But the Constitution renounced the notion that some constitutional rights were more equal than others. A plaintiff either possessed the constitutional right he was asserting, or not and if not, the judiciary had no business creating ad hoc exceptions so that others could assert rights that seemed especially im­portant to vindicate. A law either infringed a constitu­tional right, or not; there was no room for the judiciary to invent tolerable degrees of encroachment. Unless the Court abided by one set of rules to adjudicate constitu­tional rights, it could continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappeared.
  8. The decision could prompt some to claim victory, just as it could stiffen opponents’ will to object. But the entire nation had lost something essential. The majority’s em­brace of a jurisprudence of rights-specific exceptions and balancing tests was a regrettable concession of defeat, an acknowledgement that the Court had passed the point where law, properly speaking, had any further application.

Held by Justice Alito, Chief Justice Roberts and Justice Thomas (Dissenting)

  1. Although the scope of a cause of action or claim for purposes of res judicata was hardly a new question, courts and scholars had struggled to settle upon a definition.But the outcome of the present case did not depend upon the selection of the proper definition from among those adopted or recommended over the years because the majority’s holding was not supported by any of them.
  2. The thrust of the Court’s argument was that a trial judge could circumvent the rules of claim preclusion by granting a plaintiff relief on a claim that the Plaintiff was barred from re-litigating. The Court mustered no authority for this proposition, which could undermine the interests that the doctrine of claim preclusion was designed to serve. A fundamental precept of common-law adjudication was that an issue once determined by a competent court was conclusive. That interest in finality was equally offended regardless of whether the precluded claim was included in a complaint or inserted into the case by a judge.
  3. The Court’s main argument was that the second facial challenge was a different claim because of changed circumstances. What the Court meant by that was that petitioners had better evidence than they did at the time of the first case with respect to the number of clinics that could have closed as a result of the admitting privileges requirement. That argument was contrary to a cardinal rule of res judicata, namely, that a plaintiff who lost in a first case could not later bring the same case simply because it had now gathered better evidence. Claim preclusion did not contain a better evidence exception.
  4. The Court chiefly used Comment f to section 24 of the second Restatement on how material operative facts occurring after the decision of an action with respect to the same subject matter couldin themselves, or taken in conjunction with the antecedent facts, have comprised a transaction which could havebeen made the basis of a second action not precluded by the first. Section 24 included three illustrative examples in the form of hypothetical cases, and none resembled the present case.
  5. The present claim was not similar to any of those illustrations. It did not involve a claim based on post judgment acts and a new legal theory. It did not ask the Court to adjudicate a person’s status nor did it involve a continuing course of conduct to be proved by the State’s new acts. The final illustration actually undermined the Court’s holding. The Fifth Circuit Court in Exhibitors Poster Exchange, Inc. v. National Screen Service Corp. distinguished that only post judgment acts and not post judgment consequences could give rise to a new cause of action. The Court did not rely on any new acts performed by the State of Texas after the end of the first case. Instead, it relied solely on what it took to be new consequences, the closing of additional clinics that was said to have resulted from the enactment of H. B. 2.
  6. The Court also relied on the second sentence of Comment f which stated that where important human values such as the lawfulness of a continuing personal disability or restraint were at stake, even a slight change of circumstances could have afforded a sufficient basis for concluding that a second action could have been brought.
  7. The Court’s holding that the Petitioners’ second facial challenge to the admitting privileges requirement was not barred by claim preclusion was not supported by any of the cases or any body of lower court precedent; was contrary to the bedrock rule that a party could not re-litigate a claim simply because the party had obtained new and better evidence; was contrary to the first Restatement of Judgments and the actual rules of the second Restatement of Judgment; and was purportedly based largely on a single comment in the second Restatement, but did not even represent a sensible reading of that comment. In a regular case, an attempt by petitioners to re-litigate their previously unsuccessful facial challenge to the admitting privileges requirement could have been rejected out of hand indeed and might have resulted in the imposition of sanctions under Federal Rule of Civil Procedure 11. No court could even think of reviving such a claim on its own. But in the abortion case, ordinary rules of law and fairness were suspended.
  8. Even if the Court were right to hold that res judicata did not bar the suit and that H. B. 2 imposed an undue burden on abortion access, it was, in fact, wrong on both counts. It was still wrong to conclude that the admitting privileges and surgical center provisions had to be enjoined in their entirety. H. B. 2 had an extraordinarily broad severability clause that had to be considered before enjoining any portion or application of the law. Both challenged provisions could have survived in substantial part if the Court faithfully applied that clause. Regrettably, it enjoined both in full, heedless of the controlling intent of the state legislature. Severability was of course a matter of state law.
  9. Applying severability to the surgical center requirement called for the identification of the particular provisions of the ambulatory surgical centers regulations that resulted in the imposition of an undue burden. Those regulations were lengthy and detailed, and while compliance with some could have been expensive, compliance with many others could have not. Many served important health and safety purposes. Thus, the surgical center requirements could not be judged as a package. But the District Court nevertheless held that all the surgical center requirements were unconstitutional in all cases, and the Court sustained the holding on grounds that were hard to take seriously.
  10. The provision on severability indisputably required that all surgical center regulations that were not themselves unconstitutional be left standing. Requiring an abortion facility to comply with any provision of the regulations applicable to surgical centers was an application of the provision of H. B. 2 that required abortion clinics to meet surgical center standards. Therefore, if some such applications were unconstitutional, the severability clause plainly required that those applications be severed and that the rest be left intact. The Court escaped the painfully obvious conclusion in that its main argument was that it needed not honor the severability provision because doing so would have been too burdensome.
  11. Under the Supremacy Clause, federal courts could strike down state laws that violated the Constitution or conflicted with federal statutes, but in exercising that power, they had to take great care. The power to invalidate a state law implicated sensitive federal-state relations. Federal courts had no authority to carpet-bomb state laws, knocking out provisions that were perfectly consistent with federal law, just because it would be too much bother to separate them from unconstitutional provisions.
  12. By forgoing severability, the Court struck down numerous provisions that could not plausibly impose an undue burden. For example, surgical center patients had to be treated with respect, consideration, and dignity. Patients could not be given misleading advertising regarding the competence or capabilities of the organization. Centers had to maintain fire alarm and emergency communications systems and eliminate hazards that could lead to slipping, falling, electrical shock, burns, poisoning, or other trauma. When a center was being remodeled while still in use, temporary sound barriers would be provided where intense, prolonged construction noises would disturb patients or staff in the occupied portions of the building. Centers had to develop and enforce policies that concerned teaching and publishing by staff. They had to obtain informed consent before doing research on patients. Each center would develop, implement and maintain an effective, ongoing, organization-wide, data driven patient safety program. Those were but a few of the innocuous requirements that the Court invalidated with nary a wave of the hand.
  13. Any responsible application of the H. B. 2 severability provision would have left much of the law intact. At a minimum, both of the requirements challenged ought to have been held constitutional as applied to clinics in any Texas City that could have had a surgical center providing abortions (i.e., those areas in which there could not possibly have been an undue burden on abortion access). The surgical center requirement was clearly constitutional as to new abortion facilities and facilities already licensed as surgical centers. Every application of every surgical center regulation that did not pose an undue burden should have been upheld, at the very least, all of the regulations as to which petitioners had never made a specific complaint supported by specific evidence. The Court’s wholesale refusal to engage in the required severability analysis revived the antagonistic canon of construction under which in cases involving abortion, a permissible reading of a statute was to be avoided at all costs.
  14. If the Court was unwilling to undertake the careful severability analysis required, that was no reason to strike down all applications of the challenged provisions. The proper course would have been to remand to the lower courts for a remedy tailored to the specific facts shown in the case, to have tried to limit the solution to the problem as held in Ayotte v. Planned Parenthood of Northern New Eng.


Appeal upheld, case remanded for further proceedings consistent with the opinion.


Relevance to the Kenyan Situation

Kenya has provided for laws on abortion, most importantly in the Constitution of Kenya, 2010. Article 26 (4) under the Bill of Rights provides that abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.

The Penal Code, Chapter 63, Laws of Kenya provides penalties for a person who helps a woman procure abortion unlawfully, for a woman who unlawfully procures an abortion and a person who unlawfully supplies to or procures drugs or instruments to procure an abortion.

There is also the Health Bill, 2015 by the National Assembly which provides for reproductive health. The Bill defines abortion to mean termination of a pregnancy before the offspring is viable as an independent life outside the womb. Section 6 (1) (a) provides that men and women of reproductive age have a right to be informed about, and to have access to reproductive health services except for elective abortions. Subsection (2) goes ahead to state that atrained health professional shall refer to a health professional with skills needed to manage uncomplicated abortion and post-abortion care and in the identification, management and referral of abortion-related complications in women, and who has a valid license from the recognized regulatory authorities to carry out the procedure.

Subsection 3 states that procedures including abortion shall be performed in a legally recognized health facility with an enabling environment consisting of the minimum human resources, infrastructure, commodities and supplies for the facility.

Abortion is illegal in Kenya and several cases, in the courts are a testimony to this. The Penal Code In Johnson Jefa Kalama v R [2010], both the Trial Court and the High Court found the appellant guilty of the offence of conspiracy to commit a felony contrary to section to commit a felony contrary to section 393 of the Penal Code, Chapter 63, Laws of Kenya, that is, to procure miscarriage on a woman namely E.S.D and also a second charge of attempt to procure abortion contrary to section 158 of the Penal Code on the same woman.

In Francis Makokha Masindanov R [2005], the Appellant and his co-accused were jointly charged with the offence of attempt to procure abortion contrary to section 158 of the Penal Code and sentenced to 4 ½ years in prison.

There is also case law on procuring abortion but most have the victims as deceased hence the accused are usually charged with manslaughter or murder. These includeRepublic v Jackson Namunya Tali [2014], Republic v Alice Chelangat Chewen [2007] and Joseph Nyongesa Namukana v R [2010].

The above US case involves both procedural and substantial aspects of law, though mainly the latter. It will act as a modern precedent in the Kenyan situation, mainly for comparative analysis.

Write a comment:

You must be logged in to post a comment.

© 2020 National Council for Law Reporting (Kenya Law) is ISO 9001:2015 Certified | Creative Commons | Privacy Policy & Disclaimer