June 11, 2015 — Texas abortion clinics on Wednesday asked the 5th U.S. Circuit Court of Appeals to stay its ruling upholding some of the most restrictive parts of a Texas antiabortion-rights law (HB 2), the Los Angeles Times reports (La Ganga/Hennessy-Fiske, Los Angeles Times, 6/10).
The case centered on a requirement that abortion clinics in the state meet the same building standards as ambulatory surgical centers and whether abortion facilities in El Paso and McAllen should be exempt from a separate provision that requires abortion providers to have admitting privileges at nearby hospitals.
In October 2014, the Supreme Court reversed a ruling by the 5th Circuit that had lifted a hold against the ambulatory surgical center provision. Specifically, the high court's decision placed a hold on the ambulatory surgical centers provision and exempted abortion facilities in El Paso and McAllen from a provision that requires abortion providers to have admitting privileges at nearby hospitals.
On Tuesday, the 5th Circuit in its decision 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 panel wrote, "In plain terms, H.B. 2 and its provisions may be applied throughout Texas, except that Supreme Court precedent requires us to partially uphold the district court's injunction of the (ambulatory surgical center) requirement as applied to [WWH] and to uphold the district court's injunction of the admitting privileges requirement as applied to" one physician who works at WWH.
However, the judges said the injunction would only remain in place "until such time as another licensed abortion facility becomes available to provide abortions at a location nearer to the Rio Grande Valley than San Antonio." The decision lifted the injunction against the admitting privileges requirement as applied to Reproductive Services in El Paso, which is now closed.
The ruling would take effect in about three weeks. If the ruling goes into effect, supporters of abortion rights say it would force at least eight of the 18 clinics in the state to close (Women's Health Policy Report, 6/10).
Details of Stay Request
The request, filed by the Center for Reproductive Rights, asks the 5th Circuit to stay its ruling while Texas abortion providers appeal the decision to the Supreme Court.
The clinics wrote that women and the clinics would suffer "irreparable harm" if the ruling goes into effect. They said the ruling would force many clinics to close, leaving women to have to travel longer distances to obtain abortions. As a result, they noted some women may delay getting the procedure, while others might not obtain an abortion.
The clinics said, "Although abortion is safe throughout pregnancy, its risks increase with gestational age. As a result, women who are delayed in obtaining an abortion face greater risks than those who are able to obtain early abortions" (Los Angeles Times, 6/10).
Prospects of a Stay
According to the New York Times, the 5th Circuit is not expected to grant the stay request.
If the request is denied, the Texas clinics would then ask the Supreme Court to stay the ruling while the justices decide whether they will consider the case. Votes from five high court justices would be required to grant a stay.
Abortion-Rights Advocates Want SCOTUS To Weigh In
Many abortion-rights supporters are hoping that the 5th Circuit's decision to uphold HB2 will spur the Supreme Court to clarify precedent on when abortion restrictions impose an unconstitutional "undue burden" on women's right to abortion, the Times reports.
Background on 'Undue Burden' Precedent
In the 1992 Supreme Court case Planned Parenthood v. Casey, the high court held that "the State may enact regulations to further the health or safety of a woman seeking an abortion, but may not impose unnecessary health regulations that present a substantial obstacle to a woman seeking an abortion." The justices ruled that an abortion restriction constituted an undue burden when "its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability."
However, legal experts say the definition of an undue burden is unclear. According to the Times, some say it means that antiabortion-rights laws are unconstitutional if they serve no or little legitimate purpose, while others say it means that such laws are unconstitutional if they have a major effect on abortion access.
Meanwhile, amid the uncertainty, states increasingly have enacted antiabortion-rights laws, including 20-week abortion bans, costly building standards and mandatory delays.
Undue Burden Standard 'Ripe' for Review
CRR President Nancy Northup said, "It's time for the Supreme Court to step in and make it clear that the constitutional protections for abortion services are real. All of this is heading toward a major, major Supreme Court case on abortion rights," with the Texas case being a strong possibility for the high court to take up.
B. Jessie Hill, a constitutional law professor at Case Western Reserve University, said the legal "fuzziness" of the undue burden concept has resulted in confusion and contradictory rulings by courts. He said, "It's ripe for the Supreme Court to revisit the undue burden standard."
Possibilities for Supreme Court Review
According to the New York Times, the high court next week is expected to announce whether it will hear two cases: one involving a North Carolina law (SL 2011-405) mandating certain ultrasound requirements before an abortion and the other involving an antiabortion-rights law (HB 1390) in Mississippi.
Legal experts say that both cases bring up major constitutional issues but that neither would do as much to clarify the definition of undue burden or have the overall reach of a Supreme Court decision on the Texas law (Eckholm, New York Times, 6/10).
New York Times Editorial Board, Gail Collins: Antiabortion-Rights Laws Limiting Safe Abortion Access
An editorial from the New York Times and an opinion piece by Gail Collins in the New York Times argue that antiabortion-rights restrictions such as those in Texas are reducing options for women to access safe abortion care. Summaries of the pieces appear below.
~ New York Times: "For the last several years, opponents of abortion rights have cloaked their obstructionist efforts under all manner of legitimate-sounding rationales, like protecting women's health," a Times editorial states. However, the editorial notes that while these claims "ha[ve] never been more than an insulting ruse," abortion-rights opponents lately are doing little to disguise that "[t]heir goal ... is to end all abortions." According to the editorial, the recent Texas ruling, as well as new antiabortion-rights laws in Tennessee (SB 1222) and Florida (HB 633), are all "part of the intensifying nationwide effort to make getting an abortion as difficult as possible, a strategy that always hits poor women hardest." The editorial urges the Supreme Court to clarify when an abortion restriction imposes an undue burden, noting that, in the meantime, "for millions of women across Texas and the rest of the country ... reproductive freedom is more elusive now than at any time since before Roe v. Wade was decided in 1973" (New York Times, 6/11).
~ Gail Collins, New York Times: "It's been a dismal stretch for a woman's right to choose," particularly for low-income "pregnant women in anti-abortion states" who do not have the resources of higher-income women to travel to receive an abortion, Collins writes. Collins notes that low-income women in need of abortion care are "often the most desperate" and that antiabortion-rights laws such as the one in Texas make them more likely to resort to unsafe abortions. For example, some women recently have attempted "at-home abortions, using pills found on the Internet," and several have faced criminal charges as a result (Collins, New York Times, 6/11).