Pro-choice advocates’ next big abortion rights case could change everything


Seven pro-choice actors have joined together to bring an omnibus challenge to a suite of Texas anti-abortion laws. The complaint filed in federal district court in Texas alleges multiple grounds for unconstitutionality. It’s a critical test of how courts will apply Whole Women’s Health v. Hellerstedt, a 2016 decision that clarified the “undue burden” test courts use to determine the constitutionality of abortion restrictions. To withstand a court’s scrutiny, such laws must verifiably further a valid state interest, confer benefits that outweigh burdens imposed, and be based on credible evidence.

The plaintiffs in this follow-on case are targeting six types of legal restrictions. 

The first target is TRAP laws—that is, targeted regulation of abortion provider laws—that aim to make providing abortions as difficult as possible for medical professionals. These laws can take the form of arbitrary restrictions on who can provide services and where—i.e., mandating all abortions past 16 weeks take place in a hospital or surgical center—as well as onerous licensing, inspection, and reporting requirements.

The second genre: Laws that bar abortion providers and patients alike from taking advantage of technology that permits telemedicine and medical advancements in pharmaceutical-induced abortion. Right now, doctors can’t even use telemedicine to provide state-mandated information. In-person requirements, especially when paired with waiting periods, make obtaining an abortion even more costly, at a minimum.

Third are the laws that shame people seeking abortions, impose unnecessary delays, and compel physicians to provide misleading or even false information to patients. The fourth legal target of the suit is the sub-category of such laws specific to minors, including parental consent requirements regardless of parental estrangement or abuse. Here, there’s a middle ground win available: It’d be acceptable just to expand the list of people permitted to give consent for a minor to include guardians and grandparents, the complaint notes.

Last come the laws that criminalize abortion providers themselves and the biggie, the General Appropriations Act’s Limitation on Abortion Funding, as it’s been applied by the University of Texas system. UT uses that law as a pretense to deny credit to students for internships and placements at organizations that so much as facilitate abortion access.

They’ve lodged a wide-reaching complaint, but the plaintiffs have covered their bases when it comes to standing, or their right to challenge the laws: In addition to health organizations, there’s a doctor among them. They’ve also laid out every possible constitutional objection to each law.

The genres of anti-abortion laws directly challenged constitute an undue burden on pre-viability abortion access, the plaintiffs argue, in violation of the 14th Amendment’s Due Process Clause. That’s the notion at the heart of Roe v. Wade, which legalized abortion: The Court determined that the 14th Amendment protects personal liberty, including an individual’s right to choose.  Doubling down, the plaintiffs allege each law also also violates the 14th Amendment’s Equal Protection Clause. 

Plaintiffs Dr. Bhavik Kumar and Whole Women’s Health Alliance allege that Texas’s information-related mandates and pre-abortion ultrasound requirement violate their First Amendment free speech rights. 

An organization at which University of Texas students would otherwise be placed, Lilith Fund, is key to the challenge to the General Appropriations Act’s Limitation on Abortion Funding. It argues that the law, as applied by the university system, is unconstitutionally vague and violates students’ First Amendment rights to free speech and association.  If successful, this challenge could open the door for other as-applied challenges, which can be brought to change how the law is applied or prevent it from being applied to certain actors—even if the law itself stands.


USA News


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