Clinic Regulations and the Texas Closures the Court Struck Down in 2016

Wendy Davis wore pink running shoes. That is the detail most people remember from June 25, 2013, when the Texas state senator stood on the floor of the chamber in Austin and began talking, with the aim of running out the clock on a special session and killing an abortion bill before midnight. Under the Senate's rules she could not sit, lean on her desk or take a break. She talked for about eleven hours. Late in the evening, after the presiding officer ruled that she had broken the filibuster's rules, people in the gallery began shouting, and the noise was loud enough that the vote could not be completed before the deadline. The bill died that night. Governor Rick Perry promptly called another special session, and within weeks the legislature passed it anyway. The law, House Bill 2, would close about half of the abortion clinics in Texas. Three years later, the Supreme Court would strike down its key provisions, and by then most of those clinics were gone.

In short: Texas's 2013 law HB2 required abortion doctors to have admitting privileges at nearby hospitals and required clinics to meet the standards of ambulatory surgical centers. The rules closed about half the state's clinics, and in Whole Woman's Health v. Hellerstedt in 2016 the Supreme Court struck them down for imposing an undue burden without real health benefits, but many clinics never reopened.

What HB2 required

HB2 contained several provisions, including a ban on most abortions after twenty weeks and limits on how doctors could prescribe abortion pills. The two parts that mattered most for clinics were regulations about who could provide abortions and where.

The first required any doctor performing abortions to have admitting privileges at a hospital no more than thirty miles from the clinic. Admitting privileges allow a doctor to admit patients to a particular hospital and treat them there. Hospitals grant them through their own processes, and many require doctors to admit a minimum number of patients each year. Abortion is so safe that complications requiring hospital admission are rare, which meant many abortion providers could never meet those thresholds. Some hospitals, especially religious ones or those wary of controversy, simply declined to grant privileges.

The second required every abortion clinic to meet the building and staffing standards of an ambulatory surgical centre, a category of facility designed for outpatient surgery. Those standards cover things like hallway widths, ventilation systems, the size of operating rooms and the number of staff. Meeting them often meant major renovation or construction of a new building, costing millions of dollars, even for clinics that mainly provided medication abortion, which involves no surgery at all.

How the closures spread

The admitting-privileges rule took effect first, in late 2013, after a federal appeals court allowed it while the legal challenges went forward. Clinics that could not obtain privileges for their doctors stopped providing abortions. The Supreme Court later summarized the result: the number of facilities providing abortions in Texas dropped by roughly half, from about forty to about twenty. Had the surgical-centre rule also taken full effect, the Court noted, only seven or eight would have remained, concentrated in a few large cities.

Texas is enormous. A patient in the Rio Grande Valley, in West Texas, or in the Panhandle might face a round trip of several hundred miles to reach a clinic. For women working hourly jobs, raising children, or without reliable cars, that distance was decisive. Wait times grew at remaining clinics as they absorbed patients from those that closed. Some patients were pushed later into pregnancy, when procedures are more complicated and more expensive.

These laws belonged to a broader category that advocates called TRAP laws, for targeted regulation of abortion providers: rules applied to abortion clinics that were not applied to other medical offices performing procedures with similar or higher risks. Many states passed versions in the years after 2010.

The state's case, presented fairly

Texas argued that HB2 was a health and safety law. Its defenders pointed to the case of Kermit Gosnell, a Philadelphia doctor convicted in 2013 of murder and other crimes after investigators found horrifying conditions at his clinic. If a clinic like his could operate, the argument went, states had every reason to set higher standards. Admitting privileges would ensure continuity of care if something went wrong, and surgical-centre standards would ensure clinics were equipped for emergencies.

That argument is not baseless in principle. Clinics should be safe, and states regulate medical facilities for good reasons. The question the courts had to answer was whether these specific rules actually made patients safer, and whether that benefit justified the closures. Gosnell's crimes, notably, were already illegal under existing law, and the failure in his case was one of inspection and enforcement, not a lack of rules.

What the Court decided

On June 27, 2016, the Supreme Court decided Whole Woman's Health v. Hellerstedt by a vote of five to three. The Court had eight members at the time, after the death of Justice Antonin Scalia earlier that year. Justice Stephen Breyer wrote for the majority, joined by Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

The majority held that both provisions imposed an undue burden on access to abortion and were unconstitutional. Its key move concerned how courts should apply the undue burden test. Courts, the majority said, must consider the burdens a law imposes on access together with the benefits it actually confers. And they could not simply accept a legislature's claims about health benefits; they had to look at the evidence.

The evidence went one way. The record showed that abortion was extremely safe and that serious complications were rare. At oral argument, Texas acknowledged that the record held no case of a woman who would have received better care because of the admitting-privileges rule. As for the surgical-centre rule, the majority observed that Texas did not impose similar requirements on many other outpatient procedures with higher risks, such as colonoscopies, and that childbirth itself is far more dangerous than abortion. The rules did little for health and a great deal to reduce access.

Justice Ginsburg added a short concurrence arguing that laws like these, which do little to protect health but make abortion harder to get, cannot survive scrutiny, and that when clinics close, desperate women may turn to unsafe options. Justices Clarence Thomas and Samuel Alito dissented; Alito, joined by Chief Justice John Roberts and Thomas, argued among other things that the challenge should have been barred because of earlier litigation, and that the record did not prove the rules caused the closures.

Why winning was not enough

The decision was a major legal victory for abortion providers. In practical terms it came late. Closing a clinic is fast; reopening one is slow. Staff had moved on to other jobs. Leases had ended. Equipment had been sold. Doctors had retired or left the state. Communities had adjusted, often by travelling farther or going without care. After the 2016 decision, some Texas clinics reopened, but many did not.

The lesson cuts across issues. When a law is allowed to take effect during litigation, it can accomplish its goals even if it is later struck down. That is why the timing of court orders, including emergency orders, matters so much. A ruling years later restores the law on the books; it does not restore the closed clinic, the lost job, or the pregnancy that went to term because the nearest provider was four hours away.

From Texas to Louisiana to Dobbs

The fight did not end in 2016. Louisiana had passed an admitting-privileges law nearly identical to the one the Court struck down. In June Medical Services v. Russo, decided on June 29, 2020, the Court struck that law down too, by a vote of five to four. Chief Justice Roberts, who had dissented in the Texas case, voted with the majority this time, explaining in a separate opinion that he still believed the Texas case was wrongly decided but that precedent required treating like cases alike.

That 2020 ruling showed how fragile the protection was. It depended on a single justice's view of precedent. Within two years the Court's composition had changed again, and in June 2022 the Dobbs decision overruled Roe and Casey entirely. Texas's trigger ban took effect, and the question of clinic regulations became, for Texas, beside the point: nearly all abortion was illegal.

Even so, the story of HB2 remains relevant. In states where abortion is legal, laws targeting clinics with requirements not imposed on comparable medical care remain a strategy available to legislators who want to reduce access without banning it outright. And the evidence-based standard the Court applied in 2016, weighing real benefits against real burdens, is a principle that applies far beyond abortion: health regulations should actually protect health.

The same playbook in other states

Texas was not alone. In the years around HB2, several states passed admitting-privileges requirements, surgical-centre standards or both, and the results followed a pattern. In Mississippi, an admitting-privileges law threatened to close the state's only remaining abortion clinic, the Jackson Women's Health Organization, because its doctors could not obtain privileges at local hospitals. A federal appeals court blocked the law in 2014, reasoning that closing the only clinic in a state could not be justified by pointing to clinics across state lines. That same clinic later became the plaintiff in Dobbs.

In Wisconsin, a federal appeals court struck down an admitting-privileges law in 2015 in an opinion that dismissed the state's health justifications as unsupported by evidence. Alabama and Louisiana fought similar battles. Each case required providers to spend years and large sums in court defending their right to stay open, while state legislatures could pass new versions with relatively little effort.

HB2 also restricted medication abortion, requiring doctors to follow the original federal label for mifepristone, which called for a higher dose and more clinic visits than the evidence-based protocols most doctors had adopted. That requirement lost much of its force in 2016, when federal regulators updated the drug's label to reflect current practice, a reminder that clinic regulations and drug regulations are often intertwined.

The broader lesson is about asymmetry. Writing a regulation is cheap; challenging one is expensive. Legislators can pass a bill in a few weeks. Providers must hire lawyers, gather data, find expert witnesses and wait years for a ruling. During that time, if the law takes effect, the damage accumulates. The Hellerstedt ruling tried to correct that asymmetry by requiring evidence of real benefits. But the requirement only helps if courts enforce it quickly, and if providers survive long enough to benefit.

Putting evidence back into the test

The most lasting contribution of the 2016 decision may be methodological. Before Hellerstedt, some lower courts had treated the undue burden test as heavily deferential to legislatures. If a state offered a plausible health rationale, the court accepted it and asked only whether the burden on patients was too severe. The Fifth Circuit, in upholding HB2, had taken roughly that approach, saying courts should not second-guess the legislature's factual judgments about medical benefits.

The Supreme Court rejected that view. Courts, the majority said, must examine the evidence for a law's claimed benefits and weigh those benefits against the burdens. A law that imposes heavy burdens for minimal benefit cannot stand, even if the legislature believed otherwise. That is a familiar idea in many areas of law, where courts scrutinize whether a regulation actually serves its stated purpose. Applying it to abortion meant that states could no longer win simply by asserting health concerns.

The trial record in Hellerstedt was detailed: expert testimony on complication rates, data on clinic locations and travel distances, evidence about the cost of meeting surgical-centre standards. That kind of record takes time and money to build. It also points to something broader. Many policy fights, on any subject, are won or lost on whether claims about benefits are tested against facts. A public that asks for the evidence, and keeps asking, makes it harder for any lawmaker to pass rules whose real purpose differs from their stated one.

What you can do

1. Learn the history of these fights through the courts topic page, which follows rulings and nominations, and the reproductive rights page, which tracks laws in each state.
2. Pay attention to state legislatures. Clinic regulations are usually written at the state level, often in special sessions or late-session amendments. The representatives finder shows your state legislators and their contact information so you can ask about bills before they pass.
3. Follow the emergency docket. Whether a law takes effect during litigation often decides its real-world impact. Court Watch lists the Supreme Court's emergency applications and opinions this term.
4. Support clinics and the groups that help patients reach them. The organizations directory lists health and legal aid nonprofits in every state.
5. Ask about evidence. When any medical regulation is proposed, ask the sponsors for the data showing it improves patient safety. That question works whatever the subject, and it forces debate onto the ground where it belongs.

A long day of talking in Austin delayed HB2 by a few weeks. A Supreme Court ruling three years later struck it down. In between, the clinics closed, and the gap between a legal victory and a working clinic is where the real work of protecting access has to happen.