The Supreme Court’s decision last week to delay the enforcement of a Texas law designed to protect women from the abuses of a dangerous, profit-driven, and under-scrutinized abortion industry may signal that the Court is ready to hear and decide its first abortion case since 2007. In fact, in the coming months, there will be number of abortion cases competing for the Court’s attention.
The law receiving the most attention, Texas House Bill 2 enacted in 2013, actually involves two cases. In the first case, Planned Parenthood v. Abbott, the Fifth Circuit upheld two of the Texas bill’s provisions: one requiring individual abortion providers to maintain hospital admitting privileges and another, based in part on AUL model legislation, regulating the provision of abortion-inducing drugs.
Notably, prior to the Fifth Circuit’s March 2014 decision upholding these requirements, abortion advocates had asked the Supreme Court to enjoin enforcement of the provisions while litigation continued over their constitutionality. In November 2013, by a 5 to 4 vote, the Supreme Court denied this request.
In a somewhat unusual move for a purely procedural determination, Justices on both sides of this decision issued opinions. Importantly, Justice Steven Breyer, writing for the four justices who had voted to delay enforcement of the Texas provisions, noted
[T]he underlying legal question—whether the new Texas statute is constitutional—is a difficult question. It is a question, I believe, that at least four Members of this Court will wish to consider irrespective of the Fifth Circuit’s ultimate decision.
As review is granted upon the votes of only four Justices, this sentiment would strongly suggest that Supreme Court review of the maternal health protections in Texas House Bill 2 is likely.
Undeterred by their loss in the Fifth Circuit, abortion advocates filed a second lawsuit against the Texas law in April 2014. In Whole Women’s Health v. Lakey, abortion providers challenged a provision requiring abortion facilities to meet the same health and safety standards as ambulatory surgical centers. They also launched a second challenge to the admitting privileges requirement, arguing that, while the Fifth Circuit had affirmed its constitutionality, the requirement was still improper as applied to two specific Texas abortion clinics.
The ambulatory surgical center standards were set to go into effect on September 1, 2014. However, on the last Friday in August, a federal district judge in Austin struck down this provision and, disregarding the Fifth Circuit’s decision affirming the Texas admitting privileges requirement, invalidated the admitting privileges requirement, seeming to prohibit its enforcement against not just the two clinics named in the second lawsuit but also against any Texas abortion provider.
On October 2, the Fifth Circuit overruled the lower court and permitted the ambulatory surgical center standards and the admitting privileges requirement to be enforced while the State of Texas’s appeal continues. However, this time, abortion advocates succeeded in delaying the implementation of these medically appropriate and much-needed standards, when the Supreme Court, by a 6 to 3 decision, reinstated the district court’s injunction on October 14.
This most recent action by the Supreme Court against the Texas law, along with its earlier determination in Abbott, strongly suggests that the Texas law is on the fast-track to Supreme Court review. However, the Fifth Circuit must first rule on the claims raised in Lakey, the abortion industry’s second desperate attempt to derail a law supported by a majority of Texans.
Should the Supreme Court agree to hear one or both Texas cases, it will likely be asked to decide not just the constitutionality of the specific requirements of House Bill 2, but also to revisit and clarify the meaning and scope of the “undue burden” standard the Court adopted in the 1992 landmark abortion decision, Planned Parenthood v. Casey.
Under the Casey standard, a law designed to advance a state’s interest in protecting maternal health is valid unless it imposes an “undue burden, which exists if a regulation’s purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion.”
In the more than 20 years since Casey, courts have often struggled with the application of the undue burden standard. Recently, some courts have even appeared to alter the standard, imposing a more stringent standard of review on state abortion laws. The implementation of this stricter standard has resulted in some courts substituting their own judgment as to the appropriateness of laws like Texas House Bill 2 rather than giving appropriate deference to state legislative determinations.
Under the standard now being applied by some federal courts, well-supported legislative determinations that, in order to protect women, abortion clinics must meet the same medically appropriate health and a safety standards as other facilities performing outpatient surgeries or that, in order to properly deal with complications from abortion, providers must have hospital admitting privileges are being ignored. Instead, some courts have focused on ensuring mere access to abortion and ignored the fact that the rudimentary availability of abortion clinics does not guarantee women’s health and safety.
One very frightening, but natural consequence of this inappropriate reformulation of the Casey is that every state will be required to guarantee access to abortion within its borders, but will not be able to adequately protect women from the substandard conditions and practices in many abortion clinics or from butchers like Kermit Gosnell. The Supreme Court can deter such an outcome by re-examining and clarifying the undue burden standard.
Ultimately, Supreme Court review of Texas House Bill 2 would provide a welcomed opportunity to demonstrate that such maternal health laws are both necessary and medically justified, that state must be given significant latitude to regulate abortion, and that abortion is not “safe” for either women or their unborn children.