It’s nice to be able to praise a court for getting things right. Last week the 5th Circuit Court reversed the district court ruling, of October 28, 2013, that had claimed Texas’s HB2 law was unconstitutional. This was the law passed last summer, which got notoriety for Wendy Davis, for her “pro-feminist” filibuster, which caused the legislature to go into special session to pass it—which did indeed pass easily. An emergency stay of the district court’s order two days after the ruling kept the law from being enjoined (in other words, HB 2 continued to be treated as the law), since the state showed likelihood of success upon appeal.
The 5th Circuit pretty well gave a smackdown to the district judge. It might be interesting to note that the three-judge panel was made up of three career-women, and the district judge was a man. The assumption that all thinking working women must be automatically pro-abortion is clearly false.
To review, the law did mainly two things: 1) prohibited abortions after 20 weeks, the point at which we now have evidence the fetus feels pain; and 2) required abortion providers to meet the health and safety requirements of other surgical centers.
The first point was not disputed by the plaintiffs: Planned Parenthood of Greater Texas Surgical Health Services, along with other Planned Parenthood entities and other abortion providers in Texas. The 20-week mark is only a few weeks before the previously set “viability” limit. It has been upheld in other states, and is the standard limit in most of Europe. So they didn’t even argue that main purpose of the law.
The second purpose had several provisions: doctors needed to have hospital admitting privileges; surgical centers needed to meet health and safety and cleanliness standards; and medication abortions must be held to the FDA requirements for use of those substances.
The plaintiffs took issue with the provision of the law regarding admitting privileges and limit to use of medication abortions. They presented four grounds for invalidating the law: violation of patients’ substantive due process rights, violation of physicians’ procedural due process rights, unlawful delegation of authority to hospitals, and vagueness. The opinion goes through each of these, explaining in pretty clear terms (considering it’s legal language) why the district court was wrong.
The state maintains the district court erred in these four ways: 1) granting standing to abortion providers to assert physicians’ and patients’ rights vis-à-vis the issues raised; 2) facially invalidating the admitting-privileges regulation; 3) creating a “broad and vague ‘health’ exception” to the medication abortion regulations; and 4) enforcing an injunction beyond the rights of the plaintiffs in this case.
While the ruling covers each of these carefully, the meat of the opinion relates to the requirement for admitting privileges. The standard is based on several cases that have essentially set abortion law requirements: Roe v Wade, which found a “right” for a woman to end a pregnancy by abortion; Casey, which ruled that the state had an interest once the fetus was viable, but couldn’t impose an “undue burden” on a woman seeking an abortion in earlier weeks; and Gonzalez, which added to the “undue burden” rule that the law must have a rational reason.
The plaintiffs claim, but fail to provide convincing evidence, that the requirement will limit availability to abortions by closing down. Much of what they provided was supposition without any actual cases. There were indeed specific clinics they showed would close down. But when they went through the specific clinics, there were doctors who couldn’t qualify because they were too old (already over age 65), unlicensed in obstetrics and gynecology, or unwilling to be recruited to the abortion industry in the first place (or, in the case of one doctor, unwilling to come to Texas to do abortions because of fear of anti-abortion sentiment here).
There were some hospitals—Catholic hospitals—that refused access to abortion service providers, but essentially all public hospitals are required to allow admitting privileges if abortion service is the only disqualifier.
That answered one question I had: why did they assume they couldn’t get admitting privileges if they hadn’t tried? Abortion providers who apply for admitting privileges must get them at most hospital if they meet all other requirements—but they might not qualify, or might not want to try, reasons that hardly show dedication to women’s health. Essentially, if a woman expects an OB/GYN physician to perform her surgical abortion, and to have him be her physician if an issue arises that requires hospitalization—as happens to 210 Texas women annually—Planned Parenthood says she should have no such expectation, and can just go to an emergency room, because her abortionist is done with her.
The state showed that there is a loss of care when a patient is handed over to a doctor who does not know her medical history. That is the reason other out-patient surgeons are required to have admitting privileges. So the rational basis for that provision of the law was met.
The plaintiffs tried to say that the number of abortion clinics that would be forced to close would cause a third of abortion clinics in the state to close. They added that this could prevent 22,286 women who were seeking abortions. They failed, however, to show that those numbers were scientifically derived; in other words, they were found to be speculation, just pulled out of thin air.
The district court opinion had found that the claim of “24 counties in the Rio Grande Valley would be left with no abortion provider because those abortion providers do not have admitting privileges and are unlikely to get them” was invalid:
[The district court’s] opinion invalidated the admitting–privileges provision as it pertains to the entire state of Texas, but its only recitation of evidence concerned “24 counties in the Rio Grande Valley,” which it predicted would be left with no abortion provider. As an initial matter, the statement that both clinics in the Rio Grande Valley will close may be disregarded as clearly erroneous based on the trial court record. Hagstrom–Miller and Ferrigno each testified that there were two clinics in the Rio Grande Valley, yet the district court accepted testimony regarding only one of them. Even if we were to accept that both clinics in the Rio Grande Valley were about to close as a result of the admitting privileges provision, however, this finding does not show an undue burden. To put this “finding” into perspective, of the 254 counties in Texas only thirteen had abortion facilities before H.B. 2 was to take effect. The Rio Grande Valley, moreover, has four counties, not twenty-four, and travel between those four counties and Corpus Christi, where abortion services are still provided, takes less than three hours on Texas highways (distances up to 150 miles maximum and most far less). In addition, Texas exempts from its 24-hour waiting period after informed consent those women who must travel more than 100 miles to an abortion facility (pp. 20-21).
Yeah, it had been that badly ruled. I don’t know what was going through the district court judge’s mind, but he was clearly going above and beyond the law to try to ensure abortion under any circumstances, regardless of risk to women’s health.
I’m glad the 5th Circuit got this one right. I wish we didn’t have to so often depend on courts to decide these life and death issues. But I’m glad when they use the rule of law.
There’s always more to say against abortion. I came across a piece this week, written I think over a decade ago, from the Ethics and Public Policy Center, detailing some of the negative costs to society of abortion. A lot of data, worth considering: “The Socioeconomic Costs of Roe v. Wade.”