Op-Ed: 'Stakes Couldn't Be Higher' in Challenge to Texas' HB 2

October 16, 2015 — As the Supreme Court considers whether it will hear a challenge to a Texas antiabortion-rights law (HB 2), "[t]he stakes couldn't be higher, either for women who live in the growing number of states governed by anti-abortion politicians or for the court itself," columnist Linda Greenhouse writes in a New York Times opinion piece.

Prior to the law's passage in 2013, "there were more than 40 abortion clinics in 16 Texas cities," Greenhouse notes. She writes that if the Supreme Court does not overturn the lower court ruling, "there will be at most 10 clinics in a state with 5.4 million women of reproductive age" and "no clinics at all in the 500 miles between San Antonio and the New Mexico border."

According to Greenhouse, the law mandates that providers "have admitting privileges at a hospital no farther than 30 miles away" and that "abortion clinics ... be retrofitted as mini-hospitals, a requirement that also applies to clinics that offer only medication abortion."

Policy Analysis

Greenhouse writes that while the "official reason for the new requirements is to protect women's health," Texas was not "suffering from an abortion-related health problem." Among the 360,059 abortions performed in Texas between 2009 and 2013, before HB 2 was enacted, there were "no deaths and a minuscule rate of complications requiring a hospital visit," Greenhouse writes, adding, "Nationwide, the major complication rate from first-trimester abortions by the method commonly used in Texas is 0.05 percent." Further, because of "[t]he extremely low complication rate ... doctors who limit their practice to abortion can't get hospital admitting privileges" because hospitals often "require doctors to admit a certain number of patients in order to maintain privileges," Greenhouse explains.

"There is no doubt that H.B. 2 is a TRAP law," which stands for the targeted regulation of abortion providers, Greenhouse continues, noting, "Texas permits doctors practicing in ordinary medical offices to administer general anesthesia, which is not typically used in abortions, and to perform colonoscopies and liposuction, both of which have higher mortality rates than abortion." Greenhouse also cites amicus briefs filed by medical organizations on behalf of the abortion providers, which assert that the requirements "'fail to enhance the quality or safety of abortion-related medical care and, in fact, impede women's access to such care by imposing unjustified and medically unnecessary burdens on abortion providers.'"

While "[n]one of these points appear to shake Texas from its 'all for women's health mantra,'" Texas claims that "the absence of an abortion clinic in the entire western half of the state is of no concern because women in El Paso, where the two abortion clinics will have to close, can simply travel one mile across the state line to a clinic in nearby Santa Teresa, N. M." However, New Mexico "requires neither admitting privileges nor a hospital-like setting," Greenhouse writes, concluding that "Texas' interest in protecting the health of its abortion patients evidently stops at the state line even as it sends women seeking abortions in West Texas across that line."

Legal Analysis

Greenhouse shifts her discussion from the policy surrounding the law to the law itself, highlighting the Supreme Court's 1992 decision in Planned Parenthood v. Casey. That ruling "subjected abortion regulations to a new 'undue burden' test, defining undue burden as 'a state regulation that has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus,'" she writes.

She explains that the court in Casey "modified Roe v. Wade to empower the states to act throughout pregnancy ... to protect both" the fetus and the health of the pregnant woman, but "limited the ways in which the state can do both those things, and it applied separate standards for each." According to Greenhouse, the standard allows the state to protect the fetus by "seek[ing] to dissuade a woman from having an abortion through such measures as [mandatory delays] and mandatory counseling," but bars the state from "prevent[ing] a woman from carrying out her decision to terminate a pregnancy."

Meanwhile, in terms of a pregnant women's health, the high court said, "'Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right [to have an abortion],'" Greenhouse writes. Paraphrasing a recent article she wrote with colleague Reva B. Siegel, Greenhouse contends, "this means that health-related regulation of abortion must be consistent with ordinary medical practice and must actually serve the asserted purpose: protecting a pregnant woman's health." A law that "serves no demonstrable health-related purpose ... most likely represents an effort by the state to protect [the fetus] by means that Casey rules out -- means that hinder rather than inform, prevent rather than persuade," Greenhouse writes.

Further, Greenhouse notes that the 5th U.S. Circuit Court of Appeals' decision upholding HB 2 "stands out" among other federal circuit court rulings against "health-justified abortion regulations that don't actually protect health," such as a 7th U.S. Circuit Court of Appeals decision blocking a Wisconsin admitting privileges measure (SB 206) and a decision by the 9th U.S. Circuit to block an Arizona medication abortion restriction (HB 2036). According to Greenhouse, the 5th Circuit "rebuked Lee Yeakel, the federal district judge who had struck down H.B. 2, for even [questioning the] validity of the state's health justifications. Yet questioning and balancing is exactly what a court must do if it is to adhere to the bargain the Supreme Court struck in Casey: States can vindicate their interest in protecting [the fetus] through means that seek to inform and persuade, but not by destroying the infrastructure that makes it possible for women to exercise the constitutional right to abortion."

Greenhouse concludes, "Preserving the right to abortion as defined in Casey keeps the court on the path of individual liberty and dignity," while upholding HB 2 "will take us backward" (Greenhouse, New York Times, 10/15).