Next Stop for HB 2 – The Supreme Court?

Earlier this month, the 5th Circuit Court of Appeals dealt a devastating blow to already beleaguered Texas abortion providers. In a heavily anticipated ruling on Whole Women's Health v. Cole, the conservative New Orleans-based court upheld the final provision of Texas' multi-part 2013 abortion law, House Bill 2, forcing clinics to comply with the same costly building guidelines as ambulatory surgical centers – a standard deemed wholly unnecessary and even dangerous by reproductive rights advocates and many medical experts, including the American Medical Association.

A death knell for most Texas abortion providers, HB 2's final provisions are set to take effect July 1, shuttering all but eight clinics in a state home to 27 million people, including more than 5 million reproductive-age women. In the meantime, plaintiffs have asked the U.S. Supreme Court to step in. As stringent abortion regulations sweep the nation, state by state, and circuit courts create a patchwork of contradictory opinions, legal scholars predict the especially draconian Texas case could very well reach America's high court, forcing it to tackle abortion regulation and provide much needed clarity on what constitutes an "undue burden" for women seeking access.

We Do Not Balance the Wisdom ...

According to the Supreme Court, it is considered unconstitutional for a law to place an "undue burden" on a person's ability to exercise her "fundamental rights." But since neither "undue burden" nor "funda­mental right" is a precise term, application of the rule has varied. In the seminal abortion case Planned Parenthood v. Casey, the Supreme Court determined an undue burden occurs when "a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." But as evidenced in the 5th Circuit decision, the definition and its myriad interpretations remain cloudy. In terms of purpose, the court tossed plaintiff claims suggesting the state failed to advance a legitimate health and safety interest, casting away their evidence as "purely anecdotal" while swallowing state claims and defendants' testimony whole, despite considerable evidence that much of that testimony was influenced by Vincent Rue, a discredited anti-choice marriage counselor with no medical background.

The court then reasoned that even though many women would now be forced to travel more than 150 miles each way for an abortion procedure, not enough – or not a "large fraction" of women – would be impacted. Offering minimal respite, the 5th Circuit did grant exception for a clinic in McAllen because women would now need to drive more than 200 miles; however, this means abortion care in all of South Texas largely rests on the shoulders of one doctor. Addi­tion­ally, clinic leaders at Whole Woman's Health remain uncertain the exception will actually allow them to keep their doors open. Strangely, while the 5th Circuit previously ruled in a related Mississippi case that driving out of state for abortion care was too far, they didn't offer the same clearance in Texas. The court failed to grant an exemption for El Paso (more than 500 miles from the closest provider), claiming West Texas women can simply make the trip to neighboring Santa Teresa, N.M., for the appointment – logic that counters the law's ostensible claim of safety, as the bordering state isn't required to comply with the same rules in HB 2. In short: Driving farther for access in Texas is no big deal.

University of Texas law professor John Robertson said the 5th Circuit could have gone another – and in his opinion, more sensible – legal route. The court examined the extent of the travel burden, not whether imposing such a burden to gain slight health benefits was in any way justified. "They upheld the law not taking into account that the surgery center requirement is not really needed in almost all cases; it's overkill," he said. "If they had balanced it out, they would have factored in making people drive so far to a mini-hospital when it's not necessary is not acceptable." Yet, the 5th throws out the balancing approach altogether: "In our circuit, we do not balance the wisdom or effectiveness of a law against the burdens the law imposes," they write.

"The Supreme Court is going to have to resolve whether the balancing view or the narrow 5th Circuit view is the appropriate way to interpret undue burden," said Rob­ertson. "And so, this is potentially the case which the court will take to clarify it."

And unlike a federal district court ruling that found HB 2 unconstitutional, the 5th Circuit, while acknowledging access may be more challenging for low-income women, didn't seriously factor in the barriers – such as cost, child care, immigration status, and time off work – that rural, minority, or poor women face. In fact, the conservative court reiterated an especially callous abortion-related 1980 Supreme Court ruling that absolves the state completely: "The financial constraints that restrict an indigent woman's ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortions, but rather of her indigency."

Plaintiffs don't mince words when describing the court's rationalization, stressing that the 5th Circuit "flagrantly disregarded" nearly half a century of Supreme Court precedent.

"The 5th Circuit opinion suggests that if you look at every issue narrowly enough and in isolation and without context you can get around the holdings of the Supreme Court," said David Brown, staff attorney with the Center for Reproductive Rights. "And the result is that they create an impossible standard for women seeking to vindicate their right to choose abortion," because they must prove there is no way to obtain one while disregarding all the challenges to access. "As long as there is a theoretical way that she can have [an abortion] at some point in her pregnancy then nothing else matters."

What Comes Next

A request to the 5th Circuit to stay its own decision was denied, as expected, on June 19, and plaintiffs have now turned to the U.S. Supreme Court for relief, asking for a temporary injunction to keep the law from going into effect next week; regardless of what the high court decides in the interim, plaintiffs plan to appeal to the court for a full reversal based on merits. Abortion cases before the Supremes have become increasingly rare, leading observers to believe SCOTUS has intentionally evaded the hotly politicized issue. While roughly two dozen abortion-related decisions were made by the Supreme Court between Roe v. Wade in 1973 and Casey in 1992, justices have ruled on just two major cases since then. Presently, the court has the opportunity to hear a case out of Mississippi that could result in the closure of that state's lone abortion clinic. But that case is in preliminary stages of legal proceedings, whereas the Texas law is much further along, having gone through a full trial. Given that, a few favorable signs from SCOTUS fuel optimism for the pro-choice legal team that the court could take up abortion, using the Texas case as the national model.

One, last week justices declined to hear an appeal of the 4th Circuit's decision to strike down North Carolina's pre-abortion ultrasound law, in effect leaving the anti-choice rule to wither away. Two, the Supreme Court previously blocked HB 2, preventing it from taking effect in October, albeit temporarily. "The fact that the Supreme Court has already acted is a real strong indication they're interested in this case," said Jan Soifer, Austin-based counsel to local abortion providers in the case. "When it vacated the 5th Circuit stay they had to conclude the 5th Circuit was wrong, which is a good sign that they'll continue to conclude the 5th Circuit is incorrect in their reasoning."

And finally, there's the need for clarity. In just the past four years alone, states have passed a combined total of 231 abortion restrictions, according to the Guttmacher Institute. The number of states with "hostile" abortion restrictions in effect skyrocketed from 13 in 2000 to 27 in 2014 (including 18 considered "extremely hostile"); today, the entire South is considered hostile to abortion rights. As abortion laws – and the litigation that almost certainly follows – become increasingly common across the nation, circuit courts have diverged on rulings, which may help drive the Supreme Court's urgency to clear up uncertainty. For instance, while the 5th Circuit applied a narrow approach, the 7th and 9th Circuit courts have used a balancing test for undue burden that weighs the obstacles for women against the state's purported health interest. Given all this, Brown voices confidence in appealing to SCOTUS: "I think we have a good chance of getting before the court, and winning before the court."

Meanwhile, abortion providers, held hostage by the will of the judiciary for years now, brace for the full and crippling impact of HB 2. The first three parts of the law have already been enacted. Physicians must secure admitting privileges at a hospital within 30 miles of the clinic where they perform the procedure; patients must adhere to outdated FDA protocol when ingesting abortion medication; and women are barred from abortion after 20 weeks of pregnancy. The effect has been that the number of abortion clinics in Texas has been sliced in half, from 41 to 17.

"Nobody is fooled by the fact that state legislators, unable to make abortion flat-out illegal, are using these regulations to make certain the impact on women is nearly the same as if it were illegal," said Soifer. "We hope the Supreme Court sees through it, too."