J. Alexander Lawrence of Morrison & Foerster.
J. Alexander Lawrence of Morrison & Foerster. (Photo: Rick Kopstein/ALM)

When are state requirements made in the best interests of women not in the best interests of women?

This was one of the questions the U.S. Supreme Court grappled with in Whole Woman’s Health v. Hellerstedt, a massive win, that topped Morrison & Foerster’s 2016 pro bono docket.

The case involved Texas’ imposition of requirements the state said were in the best interests of a woman’s health; namely, that doctors who perform abortions have admitting privileges at nearby hospitals and that abortion clinics be equipped as ambulatory surgical centers.

Morrison & Foerster partner Alex Lawrence was co-lead counsel for the plaintiffs. “The key issue in the case was the ‘undue burden’ standard the Supreme Court established in the Casey decision (Planned Parenthood of Southeastern Pennsylvania v. Casey), which says state regulations can’t impose an ‘undue burden’ on the right to have an abortion,” Lawrence said. “But what does that standard mean? Should the courts take what the state says at face value, or should the court measure the benefits and burdens the state is imposing on the right to have an abortion?”

“The state will tell you the requirement of doctors having admitting privileges makes sense, but the fact of the matter is hospitals decide whether or not to give admitting privileges to doctors on many other factors, including pecuniary interests,” Lawrence said.

“The surgical center requirement sounds great, and if you’re having an invasive surgery you want to have a sterile environment, but to have an abortion you don’t need an ambulatory surgical center because you don’t cut open the body,” Lawrence added. “And some abortion providers’ facilities can’t be retrofitted to be ambulatory surgical centers.”

In a 5-3 decision handed down on June 27, 2016, Justice Stephen Breyer, writing the majority opinion, said the admitting privileges requirement placed a “substantial obstacle” in a woman’s path to abortion. “The dramatic drop in the number of clinics means fewer doctors, longer waiting times, and increased crowding,” Breyer wrote.

The high court said the surgical-center requirement provided “few, if any, health benefits for women,” and constituted an “undue burden” on the constitutional right to an abortion.

Co-lead counsel Stephanie Toti of the Center for Reproductive Rights said, “The contributions that Alex Lawrence and his team made in our litigation against the state of Texas were invaluable. Alex is a highly-skilled, tenacious, and incredibly dedicated lawyer. We could not have achieved such a historic victory without Alex and his colleagues.”