No Undue Burden

On Tuesday, the 5^th Circuit Court of Appeals ruled in favor of the state of Texas relating to its abortion law, HB2, passed in 2013.  So it was a good day, correcting a previous bad ruling.

To review, HB2 had two pain pieces. First, it prevents abortion after week 20 of gestation—time point at which science has shown the fetus feels pain, and in line with many other states and nations. While pro-abortion cultists have fought this provision (remember the Wendy Davis filibuster), there has been no challenge to this provision in the courts.

This NYT graphic shows the pre-HB2 number of clinics, left,
and the current number of clinics, right,
with the open circles likely to close after the ruling.

The other main piece requires abortion clinics to have the same standards as other ambulatory surgical centers: doctors need admitting privileges to a hospital within 30 miles, and certain safety and cleanliness standards need to be met.

Back in October 2013, US Federal District Judge Lee Yeakel ruled that the admitting privileges requirement was unconstitutional because it poses an undue burden on women seeking an abortion and has no “rational relationship to improved patient care.”

We discussed the ruling at that time. There were several problems. The judge used the wrong criteria—strict scrutiny rather than undue burden.  He failed to notice that the law puts no undue burden on women at all; it puts the burden on the clinics and their doctors. All the state has to prove is that it has a rationale for the rule—which it does—and then it must not cause a significant and certain undue burden on women seeking legal abortions. I know that sounds convoluted, but it’s the way the Supreme Court has carved out laws and requirements, even though the Court technically has no lawmaking authority.

Texas lawmakers knew the requirements when they carefully crafted the law. If the clinics had their doctors get admitting privileges, there would be no closings. If the clinics met basic health and safety standards, there would be no closings. The state of Texas has singled out exactly zero clinics to close down regardless of standards. The clinics choose to close rather than meet the standards, which are both sensible and attainable.

There have been no plaintiffs, no examples of any woman actually suffering an undue burden. The judge made his ruling on the supposition that some hypothetical woman might someday be burdened, and declared that a significant and certain undue burden. He was overstepping, as activist judges do.

Judge Yeakel had the 5^th Circuit throw out his ruling against Texas’s requirement for a sonogram to be shown prior to an abortion. Again, there was a rationale (fully inform the patient, as with other surgical procedures), and no significant undue burden (a quick sonogram procedure in a clinic that provides sonograms). So one needs to start asking, what was he thinking? Not about the actual law, but about his personal preferences. Judges like that are in the way of justice.

The ruling Tuesday wasn’t a total win for Texas. The Court carved out a single exception, a single doctor, in McAllen, Texas, is not required to get admitting privileges. That could only make sense if there is no hospital within a 30-mile radius that will allow that doctor at that singular clinic to have admitting privileges (for example, if all of the nearby hospitals are religion-affiliated hospitals who choose to refuse him). I don’t know for certain the circumstances yet.

There will still be around ten abortion clinics in Texas, spread out so that travel for a woman is not considered an undue burden. Note that Texas is not required to make sure there are any abortion clinics; the state is simply required to make only reasonable regulations of clinics; the clinics are free to meet the regulations or not do business. It may be that, even that excluded McAllen clinic will close if it chooses not to upgrade to the safety and cleanliness standards. The law will not have caused that; the free choice of the clinic will have caused that.

Governor Abbott predicted, at the time of the 2013 ruling, when he was Attorney General, that regardless of how the 5^th Circuit ruled, it would be appealed to the Supreme Court, and that is the next step. But Texas’ new Attorney General Ken Paxton feels certain Texas will win. My guess is that, if the Supreme Court takes it up, it will be in the 2015-2016 term, with an answer by June 2016. In the meantime, the law stands and continues to function.