A lawsuit challenging abortion regulations in Texas is being fast-tracked through the appeals process and most likely will end up before the U.S. Supreme Court. Attorneys for both sides of the abortion debate must navigate uncharted waters as one provision of the law has never been effectively challenged in court.
As Whole Woman’s Health vs. Lakey is bandied in the appeals process, Texas abortion clinics were opened, closed, and then opened again since Sept. 1. In the latest iteration, the Supreme Court ruled 6-3 that two provisions of the disputed House Bill 2 (HB 2) cannot be enforced while the legislation is appealed. The case is now being expedited. Briefs should be filed before year’s end and oral arguments heard as early as January before the U.S. Court of Appeals 5th Circuit according to Denise Burke, an attorney and vice president for legal affairs for Americans United for Life, a non-profit organization that drafts pro-life public policy and law.
Burke said she was confident the contested provisions would stand up to scrutiny before the appellate court. But she would not presume to “read the tea leaves” about a Supreme Court ruling based on their Oct. 14 decision.
In its five-sentence statement vacating the lower court’s ruling, the Supreme Court named the dissenting justices, an unusual move when considering emergency applications. Justices Antonin Scalia, Clarence Thomas, and Samuel Alito voted to deny the hearing. A majority decision to deny would have left the 5th Circuit’s judgment in place and all but eight abortion clinics closed in Texas.
Some of the clinics forced to close Oct. 3 due to full implementation of the law began to open again following the high court ruling.
“The fight isn’t over, but today we are relieved,” Amy Hagstrom Miller, owner of Whole Woman’s Health and a plaintiff in the lawsuit, tweeted Oct. 15.
The post included her statement from a New York Times article, “Our entire Whole Woman’s Health team is bruised and battered from the year of battle, but today we all know in our hearts and minds that it has been worth it. Tonight, our reality in Texas was recognized by SCOTUS and they ruled on the side of Texas women.”
The ruling reinstated an injunction imposed by Federal Judge Lee Yeakel Aug. 29 halting the implementation of a provision requiring abortion clinics meet ambulatory service center (ASC) standards. The provision was due to go into effect Sept. 1.
Only four other states have a similar provision. Missouri’s law was challenged and upheld. Alabama and Pennsylvania ASC laws have not been challenged. Virginia Governor Terry McAuliffe, a Democrat, will likely roll back the provision in that state Burke said.
Abortion providers claim the ASC regulations – like the rest of HB 2 – are unnecessary and created solely to make operating abortion clinics in Texas untenable. But Burke said the provision forces clinics to operate according to the same standards as other out-patient clinics in Texas.
Americans United for Life is working with state legislators across the nation, including Texas, to draft laws establishing inspection guidelines. Failure to adequately inspect abortion clinics in Pennsylvania led to the atrocities of abortionist Kermit Gosnell, who was convicted of murder in May 2013 for killing babies born alive in his Philadelphia abortion clinic. That state’s ASC law, established in the wake of the Gosnell controversy, most likely will not be challenged in order to avoid bringing to light the lax inspection standards Burke said.
But Hagstrom and other abortion proponents charge the ASC laws are purely political and created, not with women’s health care in mind but with the goal of closing clinics.
In the Texas lawsuit, Yeakel also ruled the admitting privileges requirement could not be applied to two clinics in McAllen and El Paso. The combined impact of both provisions forced the closure of the two far-flung clinics imposing an “undue burden” for women seeking abortions in those regions of the state the judge argued.
And therein lies part of the problem.
“The courts have struggled since [Planned Parenthood vs. Casey] with ‘undue burden’,” Burke said referring to the 1992 Supreme Court case establishing to term.
The court’s invention of the term “has created an unworkable standard,” Burke said. Judges, establishing their own interpretation of the subjective term, have issued a myriad of rulings with a host of meanings for “undue burden.” Burke predicted that somewhere along the HB 2 appeals process the court is going to be asked for a concise definition.
She also said courts might also consider access to abortion facilities outside a state when quantifying undue burden. In assessing Yeakel’s undue burden conclusion, the 5th Circuit’s three judges did not consider the fact that women in El Paso can drive 50 miles to the newly opened Whole Woman’s Health abortion clinic across the border in Las Cruces, N.M. Instead they chose to consider the impact of the law only as it applies within Texas.
Similarly, the same court did not consider the ability of Mississippi women to obtain an abortion in nearby states when they refused to apply that state’s admitting privileges law earlier this year. Application of the law would have closed Mississippi’s lone abortion clinic.
“I argue that is not what the Supreme Court had in mind when they argued for the undue burden test,” said Burke.
The 5th Circuit, she said, will be asked what they mean by “undue burden.”