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5th Circuit Rejects Texas Clinics' Stay Request; Op-Ed: SCOTUS Should Use HB 2's 'Disingenuous' Purpose To Overturn Law

5th Circuit Rejects Texas Clinics' Stay Request; Op-Ed: SCOTUS Should Use HB 2's 'Disingenuous' Purpose To Overturn Law

June 22, 2015 — Abortion providers in Texas on Friday asked the Supreme Court to block a lower court ruling that would close several clinics in the state after the 5th Circuit Court of Appeals earlier that day declined the providers' request for a stay, the Los Angeles Times reports (Shepherd, Los Angeles Times, 6/19).

The lower court ruling to uphold portions of the law is scheduled to take effect on July 1 (Ura, Texas Tribune, 6/19). If the provisions take effect, about 50% of the remaining abortion clinics in the state could be at risk of closing.

Background

The case centered on a provision in an omnibus antiabortion-rights law (HB 2) that requires abortion clinics in the state to meet the same building standards as ambulatory surgical centers. The case also examined whether abortion facilities in El Paso and McAllen should be exempt from a separate provision in the law that requires abortion providers to have admitting privileges at nearby hospitals.

Earlier this month, the 5th Circuit ruled that the state had a "legitimate" purpose in implementing the legislation. Specifically, the court upheld the law's ambulatory surgical centers provision and admitting privileges requirements except in the case of one clinic, Whole Woman's Health in McAllen, Texas.

The Center for Reproductive Rights, which represents the abortion providers, on June 11 asked the 5th Circuit to stay the decision while the clinics appeal the decision to the Supreme Court (Women's Health Policy Report, 6/11). The 5th Circuit on Friday rejected the request (Texas Tribune, 6/19).

CRR Requests Stay From Supreme Court

Following the 5th Circuit's action, CRR filed an emergency request with the Supreme Court to stay the lower court's ruling and allow the clinics to remain open pending CRR's appeal (Los Angeles Times, 6/19).

CRR President Nancy Northup said it is "imperative" that the Supreme Court intervene. "No woman should be forced to cross state lines or travel hundreds of miles for essential health care," she said, adding, "And millions of Texas women cannot simply wait for months as this legal battle continues, with severely restricted options for safe and legal abortion services in the state" (Texas Tribune, 6/19).

Further, CRR has noted that many of the clinics that will be forced to close under HB 2 may not be able to reopen, even if the Supreme Court strikes down the law (Los Angeles Times, 6/19).

Supreme Court Mulling Appeal

The Supreme Court could indicate by the end of June whether it will hear the case, the AP/New York Times reports.

According to the AP/Times, the high court might be take up the case because it will allow the justices to refine their 1992 decision in Planned Parenthood v. Casey, which held that in regulating abortion, the state may not place an "undue burden" on a woman's right to the procedure. Priscilla Smith, a professor at Yale Law School, said, "Courts have been fumbling for years about what does it mean to be undue under Casey."

At an earlier point in the case, Justice Stephen Breyer wrote that the court probably would want to evaluate some of the law's provisions. In an opinion supported by three other justices, Breyer wrote that the law's constitutionality presents "a question ... that at least four members of this court will wish to consider irrespective of the 5th Circuit's ultimate decision."

Overall, according to the AP/Times, the high court's ruling in the case -- if the justices agree to consider it -- likely will hinge on Justice Anthony Kennedy's views. Kennedy was one of three authors in the Casey opinion that upheld women's right to abortion, although he also wrote the opinion that upheld a federal ban on a certain type of abortion procedure in a 2007 case (AP/New York Times, 6/22).

Planned Parenthood: No Immediate Plans for More Texas Clinics

In related news, Planned Parenthood Action Fund President Cecile Richards on Saturday said her organization will not immediately open any new abortion clinics in Texas, citing difficulties meeting HB 2's requirements, AP/ABC News reports.

Richards said, "We can build compliant facilities, but unless there is a local hospital that would give admitting privilege -- which is a highly political issue, not a medical issue -- it's very difficult."

However, Richards did not exclude the possibility of opening clinics in the future, particularly if smaller clinics could not afford to incorporate the building upgrades necessary to comply with the law. "We have in other states, and if we have to in Texas, we will," she said.

According to AP/ABC News, the clinics that would remain if HB 2's restrictions take effect are all located in large cities (AP/ABC News, 6/20).

Op-Ed: SCOTUS Should Overturn HB2 Based on Law's 'Disingenuous' Intent

The "only place" where it "isn't obvious" that HB 2 "is designed to prevent women from getting abortions ... is the one place it matters: in court," columnist Gilad Edelman writes in opinion piece for The New Yorker.

He explains that "Texas can't admit that H.B. 2's real purpose is to make it harder for women to get an abortion," because that would put the law in violation of the Casey standard and require "even the conservative Fifth Circuit ... to strike down the law." Instead, the court has "[focused] on the 'effect' part of Casey's vague standard."

Specifically, he writes that a three-judge panel on the 5th Circuit ruled that the law did not unduly burden a sufficiently "'large fraction' of women" to violate precedent, while "refus[ing] to see through the state's justifications." He explains, "[T]he most telling evidence that H.B. 2's purpose is to restrict abortion access is the fact that" state lawmakers "knew H.B. 2 would close all but a handful of abortion providers without making abortions safer," which "strongly implies that preventing abortions was the purpose of the law, not a side effect."

Edelman writes, "If the Supreme Court does weigh in and find H.B. 2 unconstitutional, it will most likely do so by endorsing" a balancing test between the law's purpose and effect, rather than "by finding an unconstitutional purpose." He writes that such a ruling "would be a missed opportunity" because while "[s]triking down these sham laws using a balancing test may get the right result ... it invites states to keep tweaking the balance of interests versus burdens until it finds a formula ... that passes muster in court." He adds, "It's up to judges to defend constitutional rights from these disingenuous attacks" (Edelman, The New Yorker, 6/19).