Applying Precedents Activity

Applying Precedents Activity

Comparison case: Whole Woman’s Health v. Hellerstedt (2016)
Precedent case: Roe v. Wade (1973)

What you need to know before you begin: When the Supreme Court decides a case, it clarifies
the law and serves as guidance for how future cases should be decided. Before the Supreme Court
makes a decision, it always looks to precedents—past Supreme Court decisions about the same
topic—to help make the decision. A principle called stare decisis (literally “let the decision stand”)
requires that the precedent be followed. If the case being decided is legally identical to a past
decision, then the precedent is considered binding and the Supreme Court must decide the matter
the same way. However, cases that make it to the Supreme Court are typically not completely
identical to past cases, and justices must consider the similarities and differences when deciding a
case.
The process of comparing past decisions to new cases is called applying precedent. Lawyers often
argue for their side by showing how previous decisions would support the Supreme Court deciding
in their favor. This might mean showing how a previous decision that supports their side is
analogous (similar) to the case at hand. It can also involve showing that a previous decision that does
not support their side is distinguishable (different) from the case they are arguing.
How it’s done: In this exercise, you will analyze a precedent and compare it to Whole Woman’s
Health v. Hellerstedt. You have been provided with information about two cases: 1) the facts, issue,
and constitutional provisions/precedents of the comparison case (Whole Woman’s Health v. Hellerstedt)
and 2) a full summary of a precedent case (Roe v. Wade).
After reading about the cases, you will look for evidence that Whole Woman’s Health v. Hellerstedt is
analogous (similar) to the precedent case and evidence that the cases are distinguished (different)
from each other. After considering both possibilities, you must decide whether the precedent is
analogous enough to command the same outcome in the comparison case, or whether the
comparison case is different enough to distinguish itself from the precedent.

1. Using factual and legal similarities, show how Whole Woman’s Health v. Hellerstedt is analogous
(similar) to the precedent case (Roe v. Wade):

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2. Show how Whole Woman’s Health v. Hellerstedt is distinguished (different) from the precedent
case (Roe v. Wade) by pointing out factual and legal differences:

3. We found that Whole Woman’s Health v. Hellerstedt is __________________ (analogous to or

distinguished from) the precedent case (Roe v. Wade) because (choose the most convincing
similarities or differences from questions 1 and 2):

4. Based on the application of the precedent, how should Whole Woman’s Health v. Hellerstedt be
decided?

_____ Decision for Whole Woman’s Health

_____ Decision for Hellerstedt

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Comparison Case: Whole Woman’s Health v. Hellerstedt (2016)

Argued: March 2, 2016
Decided: June 27, 2016

Background
Abortion is a very controversial issue in the United States. It often involves people’s strongly held
beliefs about religion, morality, life, the role of the government, and the constitutional right to
privacy. Even though the words “right to privacy” do not appear in the Constitution, the Supreme
Court has long recognized that the Constitution does guarantee Americans some degree of privacy,
or freedom from government intervention into their private lives, including a woman’s right to
obtain an abortion.
In Roe v. Wade (1973), the Supreme Court ruled that the right to privacy from the 14th Amendment
includes a woman’s right to end a pregnancy. The Court said that the government’s interests in
protecting women’s health and protecting fetal life in early pregnancy do not trump a woman’s right
to privacy. As with most constitutional rights, however, the government may place limits on this
right. The government may limit the right to abortion if a restriction is specifically designed to
address a compelling (very important) government interest—for example, protecting women’s
health or the life of a viable fetus. Government interests may outweigh a woman’s right to privacy in
late pregnancy. As the pregnancy proceeds, abortions become more dangerous for women, and the
developing fetus becomes viable; that is, it can survive outside the mother. Therefore, the
government may completely prohibit abortions during this stage unless an abortion is necessary for
the health of the mother.
Almost 20 years after Roe, in Casey v. Planned Parenthood (1992) the Supreme Court modified its rule
on government regulation of abortion. While women have a right to an abortion before the fetus is
viable, states can impose restrictions as long as the restrictions do not impose an “undue burden” on
women’s ability to obtain abortions. In other words, the law cannot restrict the actual right of a
woman to get an abortion, and it cannot create a “substantial obstacle” in being able to get an
abortion.
But that decision did not settle the debate about how far the government can go in restricting
abortion. In recent years, many states passed laws that further restrict or discourage abortion. Most
of these new laws either created outright bans on abortion early in pregnancy (which the courts have
overturned) or created new standards for the operation of abortion clinics. This case is about the
second type of law. When does a state regulation of abortion services become an “undue burden”
on a woman?

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Facts
Texas passed a law that places new restrictions on abortion facilities. One part of the law requires
physicians who perform abortions to have admitting privileges at a hospital no more than 30 miles
from the clinic (admitting privileges are granted to doctors by hospitals and include the right to
directly admit patients to that hospital). A second part of the law requires abortion clinics to meet
the same minimum requirements as a surgical center in a number of respects, from staffing to the
size and layout of the clinic. The state legislature said that the purpose of this law is to protect
women’s health by ensuring that doctors and facilities providing abortions are qualified and safe and
so women can be treated in an emergency, but the parties disagree on whether the laws would
actually protect women’s health.
About 75% of the abortion clinics in Texas would not meet these new standards and would have to
close. Almost all of the state’s rural clinics would close, leaving some women hundreds of miles
from the nearest place to get an abortion.
Several of those abortion clinics sued in federal court, asking the judge to block the law before going
into effect. The clinics do not believe that the purpose of the law is to improve women’s health,
rather it is to make it much harder to get an abortion in Texas. At trial, the judge ruled for the
clinics, saying that these new regulations created an “undue burden” on women seeking an abortion.
The judge said there was no medical reason for the new requirements and they do not make women
safer. The closure of so many facilities would make it extremely difficult for many Texas women to
to get an abortion due to the long distances they would need to travel. The judge issued an order
that stopped the law from taking effect. The state appealed that ruling to the Fifth Circuit Court of
Appeals. The Court of Appeals ruled primarily for the state. It said that the District Court judge
should not have questioned whether the law actually met the legislature’s stated purpose. It
concluded that it does not matter if the law actually makes women safer. Rather, it is enough that the
law can be justified as intending to make women safer and that the new requirements do not impose a
substantial obstacle on the ability to obtain abortions. The clinics appealed to the U.S. Supreme Court,
which agreed to hear the case.

Issues
Does a Texas law that requires 1) physicians providing abortions to have admitting privileges at a
nearby hospital and 2) abortion facilities to meet standards of surgery centers place an undue burden
on a woman’s right to have an abortion?

Constitutional Provisions and Supreme Court Precedents

− Due Process Clause of the 14th Amendment to the U.S. Constitution

“…nor shall any State deprive any person of life, liberty, or property, without due process of
law…”

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− Roe v. Wade (1973)

In a 7-2 decision, the Supreme Court ruled that women have a right to have an abortion.
The Court said that this right is part of a woman’s fundamental right to privacy, which is
protected by the 14th Amendment. The right to privacy means that people are protected
from state interference in their marriage, procreation, contraception, family relationships,
and child rearing. The government can only restrict this right if there is a compelling
government interest. Because these interests become stronger later in pregnancy, the Court
said the government may not limit abortion during the first trimester of pregnancy, may
impose reasonable restrictions during the second trimester, and may completely ban
abortion during the third trimester.

− Casey v. Planned Parenthood (1992)

The Court reviewed several Pennsylvania restrictions on abortion, including a 24-hour
waiting period, a requirement for a minor to obtain consent from her parents, and a
requirement that married women notify their husbands before getting an abortion. In a split
court, the justices’ core decision reaffirmed the ruling in Roe v. Wade that women have a right
to an abortion. However, the justices said there is a legitimate state interest to protect the
health of the woman and fetus. Therefore, the government may regulate abortion at any
point in the pregnancy. An abortion restriction cannot, however, impose an “undue burden”
on women seeking an abortion. It will be struck down if it has the purpose or effect of
creating a “substantial obstacle” to seeking an abortion before the fetus is able to survive
outside the womb. Ultimately, Casey allowed most of Pennsylvania’s restrictions, including
the 24-hour waiting period and parental consent. However, it struck down the spousal
notification requirement as an undue burden.

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Precedent Case: Roe v. Wade (1973)

Argued: December 13, 1971
Reargued: October 11, 1972
Decided: January 22, 1973

Background
The Constitution does not explicitly guarantee a right to privacy. The word “privacy” does not
appear in the Constitution. However, the Bill of Rights includes protections for specific aspects of
privacy, such as the Fourth Amendment’s “right of the people to be secure in their persons, houses,
papers and effects” from unreasonable government searches and seizures and the Fifth
Amendment’s right to be free of compelled self-incrimination in criminal cases. In early rulings
about privacy, the Supreme Court connected the right to privacy to particular locations, with
emphasis on a person’s home as a private space where the government could not intrude without a
warrant. During the 21st century, the Court began interpreting the Constitution, including the Due
Process Clause of the 14th Amendment, as providing a broader right to privacy protecting people as
well as places. Over the decades the Court interpreted this right to privacy to include decisions about
child rearing, marriage, and birth control. This is a case about whether that constitutionally protected
right to privacy includes the right to obtain an abortion.
In the 19th and early 20th centuries, most states adopted laws banning or strictly regulating
abortion. Many people felt that abortion was morally or religiously wrong, and so many states
outlawed abortion except in cases where the mother’s life was in jeopardy. But illegal abortions were
widespread and often dangerous for women who underwent them because they were performed in
unsanitary conditions. Wealthier women could travel to states or other countries with looser laws to
obtain abortions, while poorer women often did not have that option. In the 1960s, a movement to
make abortion legal gained ground. The movement advocated for changes in state laws (and four
states did repeal their bans) and brought cases in courts challenging the abortion bans as
unconstitutional.

Facts
In 1969, a resident of Texas known as Jane Roe (a pseudonym used to protect her identity) wanted
to terminate her pregnancy. Texas law made it a felony (serious crime) to abort a fetus unless “on
medical advice for the purpose of saving the life of the mother.” Roe and her attorneys filed a
lawsuit on behalf of her and all other women who were or might become pregnant and seek
abortions. The lawsuit was filed against Henry Wade, the district attorney of Dallas County, Texas,
and claimed that the state law violated the U.S. Constitution.
A three-judge federal District Court ruled the Texas abortion law unconstitutional under the Ninth
Amendment, which states that “[t]he enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.” In particular, the District Court

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concluded that “[t]he fundamental right of single women and married persons to choose whether to
have children is protected by the Ninth Amendment,” which applies to the states through the 14th
Amendment. The case was then appealed directly to the U.S. Supreme Court, which agreed to hear
it.

Issue
Does the U.S. Constitution protect the right of a woman to obtain an abortion?

Constitutional Amendments and Supreme Court Precedents

− Ninth Amendment to the U.S. Constitution

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people.”

− 14th Amendment to the U.S. Constitution

“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.”

− Griswold v. Connecticut (1965)

A married couple sought advice about contraception from a Planned Parenthood employee
named Griswold. Connecticut law criminalized providing counseling to married people for
the purpose of preventing conception. The Supreme Court ruled that the Connecticut law
violated the Constitution because it invaded the privacy of married couples to make
decisions about their families. The Court identified privacy as an important value,
fundamental to the American way of life and to the other basic rights outlined in the Bill of
Rights (including the First, Third, Fourth, and Ninth Amendments). Seven years later, the
Court decided a case that extended access to contraception to unmarried persons, as well.

− United States v. Vuitch (1971)

Washington, DC, had a law that prohibited abortions unless a woman’s life or health was
endangered by the pregnancy. Dr. Vuitch was arrested for violating that law, and he argued
that only a doctor (not a prosecutor) could determine whether an abortion was necessary to
protect a woman’s life or health. The Supreme Court did not overturn the DC law. Instead it
ruled that “health” should include both psychological and physical well-being.

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Arguments for Roe

− A woman’s right to privacy is implicitly guaranteed in the First, Fourth, Fifth, Ninth, and 14th
Amendments. As the Court ruled in Griswold, there are certain matters—including the
decision about whether to have a child—that are individual decisions protected by the
Constitution.
− Unwanted pregnancies can have a major impact on women’s lives. In the 1970s, women
could be asked to leave their jobs if they became pregnant, and most employers did not
provide maternity leave. Women could be endangering their careers or finances in addition
to their psychological and physical health by being forced to carry a pregnancy to term.
− Women in Texas who wish to have an abortion must either travel to another state where
abortion is legal or undergo an illegal abortion where conditions could be unsafe. Travel is
costly and inconvenient, thus making access to a safe, legal abortion more difficult for poor
women. Illegal abortions put women’s life, health, and well-being at risk.
− The law criminalizes a safe medical procedure, and it is too vague for doctors to know what
they may or may not do. Doctors must determine that a woman’s life is at risk in order to
perform a legal abortion, and their decision and professional interpretation of “at risk” could
land them in jail.
− An unborn fetus is not legally recognized as a person and does not have rights equal to the
mother. Abortions were more common in the 19th century, so it is clear that the framers of
the 14th Amendment did not intend to include fetuses in the definition of “persons.” No
Supreme Court case has established that a fetus is legally a person and, therefore, entitled to
constitutional rights.

Arguments for Wade

− There is no right to abortion guaranteed in the Constitution. It is mentioned nowhere in the
text, and there is no reason to believe that those who wrote the 14th Amendment intended to
protect that right.
− A fetus, from the date of conception, is a person and has constitutional rights. The state has
an important interest in protecting its future citizens. The right to life of the unborn child is
superior to the right to privacy of the mother. The balancing of the two interests should
favor the most vulnerable, the unborn child.
− In previous decisions where the Court protected individual or marital privacy, that right was
not absolute. All protected rights are subject to reasonable regulation, and Texas has a strong
interest in protecting life and protecting women’s health, so the abortion restrictions are
reasonable.

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− Abortion is different from contraception, so the Court’s decision in Griswold v. Connecticut

does not apply here. Contraception prevents creation of life whereas abortion destroys
existing life.
− Abortion is a policy matter best left to the state legislatures to decide. As elected officials,
legislators make laws that reflect the popular will and morality of the people—as they have
done here. The prohibition against abortion in Texas has existed since 1854.

Decision
In a 7-2 decision, the U.S. Supreme Court decided in Roe’s favor. Justice Blackmun wrote the
opinion of the Court, which recognized that a woman’s choice whether to have an abortion is
protected by the Constitution. Chief Justice Burger and Justices Stewart and Douglas wrote
concurring opinions. Justices White and Rehnquist wrote dissenting opinions.

Majority
The majority rooted a woman’s right to decide whether to have an abortion in the Due Process
Clause of the 14th Amendment, which prohibits states from “depriv[ing] any person of … liberty …
without due process of law.” According to the majority, the “liberty” protected by the 14th
Amendment includes a fundamental right to privacy. The majority began by surveying the history of
abortion laws and concluded that “the restrictive criminal abortion laws in effect in a majority of
States today are of relatively recent vintage,” and “are not of ancient or even of common-law
origin.” The Court then held that “[t]his right of privacy, whether it be founded in the Fourteenth
Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as
the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is
broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
Further, after considerable discussion of the law’s historical lack of recognition of rights of a fetus,
the majority concluded “the word ‘person,’ as used in the Fourteenth Amendment, does not include
the unborn.” A woman’s right to choose to have an abortion falls within this fundamental right to
privacy and is protected by the Constitution.
While holding that “the right of personal privacy includes the abortion decision,” however, the
Court also emphasized that “this right is not unqualified and must be considered against important
state interests in regulation.” In particular, the Court noted, “[w]here certain ‘fundamental rights’ are
involved, the Court has held that regulation limiting these rights may be justified only by a
‘compelling state interest,’ and that legislative enactments must be narrowly drawn to protect only
the legitimate state interests at stake.” The Court recognized that “the State does have an important
and legitimate interest in preserving and protecting the health of a pregnant woman” and “still
another important and legitimate interest in protecting the potentiality of human life.” Striking a
balance between a woman’s fundamental right to privacy and these state interests, the Court set up a
framework laying out when states could regulate and even prohibit abortions.

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Under that framework, in the first trimester (the first three months of the pregnancy), a woman’s
right to privacy surrounding the choice to have an abortion outweighs a state’s interests in regulating
this decision. During this stage, having an abortion does not pose a grave danger to the mother’s life
and health, and the fetus is still undeveloped. The state’s interests are not yet compelling, so it
cannot regulate or prohibit her from having an abortion. During the second trimester, the state’s
interests become more compelling as the danger of complications increases and the fetus becomes
more developed. During this stage, the state may regulate, but not prohibit, abortions, as long as the
regulations are aimed at protecting the health of the mother. During the third trimester, the danger
to the woman’s health becomes the greatest and fetal development nears completion. In the final
trimester, the state’s interests in protecting the health of the mother and in protecting the life of the
fetus become their most compelling. The state may regulate or even prohibit abortions during this
stage, as long as there is an exception for abortions necessary to preserve the life and health of the
mother.

Concurrences
Three justices filed concurring opinions in the case. Justice Stewart emphasized that the Court was
basing its holding on the so-called “substantive” component of the Due Process Clause of the 14th
Amendment. Justice Douglas rejected Justice Stewart’s invocation of “substantive” due process, but
he agreed that the constitutional right at issue was based in the term “liberty” in the Due Process
Clause of the 14th Amendment. Chief Justice Burger underscored that “the Court today rejects any
claim that the Constitution requires abortions on demand.”

Dissents
Two justices filed dissenting opinions. In his dissenting opinion, Justice White, joined by Justice
Rehnquist, argued that he found “nothing in the language or history of the Constitution to support”
the right to an abortion. He characterized the decision as “an extravagant and improvident exercise
of the power of judicial review that the Constitution extends to this Court,” and noted that the
decision prevents the people and the legislatures of the states from “weighing the relative
importance of the continued existence and development of the fetus, on the one hand, against a
spectrum of possible impacts on the mother, on the other hand.” Justice Rehnquist filed a separate
dissenting opinion, arguing that abortion did not fit within the right of “privacy” recognized in the
Court’s previous cases and characterizing the decision as “partak[ing] more of judicial legislation
than … a determination of the intent of the drafters of the Fourteenth Amendment.”

Impact
The immediate impact of the decision in Roe v. Wade was the striking down of laws that banned
or severely restricted abortions in 30 states, including Texas.
Since Roe v. Wade, several states have passed laws regulating abortion; these are often
challenged in court. The decision in Roe v. Wade acted as precedent for several later decisions

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regarding abortion, such as Planned Parenthood of Southeastern Pennsylvania v. Casey,

Gonzales v. Carhart, Whole Woman’s Health v. Hellerstedt, and June Medical Services v. Russo.
The decisions in these cases upheld Roe v. Wade but allowed for some restrictions like waiting
periods and parental notification for minors. Although the Supreme Court no longer uses the
trimester framework declared in Roe v. Wade, the Court has continued to rule that laws placing
an undue burden on women seeking abortions are unconstitutional despite permitting some
restrictions on the procedure.

Additional information about Roe v. Wade, including background at three reading levels, opinion
quotes and summaries, teaching activities, and additional resources, can be found at
https://www.landmarkcases.org/.

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