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.

Bench Slap Needed

The Texas abortion law HB2 is in the news again, and again the Houston Chronicle has a difficult time not coloring the story with their pro-abortion position. Here’s how the Saturday, August 29, front page story begins:

For the second time in 10 months, a federal judge has struck down a key piece of Texas’ tough new abortion law just before its implementation was expected to force clinics across the state to close.

The facts are basically there, sort of. But, if you’re not up on this story, you might think that various judges are consistently finding this “tough new abortion law” too onerous to be legal.  What’s really happening is that one judge, Federal District Judge Lee Yeakel, keeps ignoring the criteria for judging and keeps ruling according to an outcome he wants. He stayed the law’s implementation last fall, and the stay was lifted in three days; then his ruling was reversed entirely in April.

Earlier in August opponents went before the same judge again, saying they shouldn’t have to comply.  I wrote about the admitting privileges part of the law August 7, and son Political Sphere followed up about what’s going on in Mississippi and Alabama with similar laws. [“Admitting Bias, part I, part II”]

Judge Yeakel’s first  ruling claimed the law didn’t pass the “undue burden” requirement, based on the number of clinics that did not have doctors with admitting privileges. At issue before the hearing this past month were again the admitting privileges and also the required upgrades to be as other surgical centers—which were set to take effect September 1^st. He used the upgrade argument to claim undue burden this time.

For both reasons, a number of clinics have chosen to close rather than meet the law. Judge Yeakel is equating the choice of the clinics not to meet the law with undue burden placed on women seeking abortions. But that is not the standard he should be using. The state is not required to adopt laws to make sure clinics choose to do business in the state; the state is merely required to make its regulations meet standards set by the Supreme Court (as if SCOTUS had authority to set such laws in the first place, but I digress).

As the judge was instructed last spring, the law only causes an undue burden if the requirements have no reasonable purpose (health and safety are a reasonable purpose here, particularly in the wake of the Gosnell case and cases similar that have shown up in Texas), and that the law prevents reasonably regulated clinics from operating. The state is not required to “sponsor” such businesses, nor adapt laws to ease the financial costs to entice such businesses.

Nothing has changed. Judge Yeakel is imposing his viewpoint again, rather than judging according to the law. The clinics involved may have shown that fewer clinics are operating, but they have not shown that the law prevented them.

Additionally in Friday’s ruling, Judge Yeakel exempted the El Paso and McAllen areas from the law’s requirements, because no doctors got admitting privileges, and no clinics would remain open. That would mean women seeking abortions in that part of the state would have a longer drive—if they chose to stay in Texas. But they were within 15 miles of a clinic in New Mexico. The out-of-state clinic would not necessarily conform to health and safety rules required in Texas, but the judge just said Texas clinics in those areas would fail compliance as well, and that’s OK—because it’s more important to have abortion clinics in Texas than to have safe and reliable medical facilities. Somehow that shows how caring he is about El Paso women.

The distance rule set by SCOTUS is 150 miles. If the law is fully implemented, with any existing clinics refusing to meet the new standards and therefore closing, it still so happens that 86% of Texas women live within 150 miles of such a clinic. And there is nothing the state is doing to prevent additional clinics from meeting the higher standards to locate near the other 14%. The clinics that are closing are refusing to put their financial resources into health and safety upgrades; they prefer to close rather than to raise the cost of doing their grisly business.

What I expect will happen (and what the state expects to happen) is that the 5^th Circuit will rule quickly, reversing AGAIN Judge Yeakel’s imposition of his personal opinion, rather than following the law. If this happens, it is what in casual legal circles would be called a “bench slap.” The judge is being put in his place for failing to apply the law and instead imposing his opinion of what he wants to be the outcome.

Bench slapping happens to the 9^th Circuit (particularly any three-judge panel operating in California) pretty regularly, when its decisions are vacated by the Supreme Court. And it is becoming something of a habit for the pro-abortion-under-any-circumstances Judge Yeakel. Let’s hope the 5^th Circuit takes care of him again promptly.

Texas Abortion Ruling

In Texas this week, some of the news included a federal judge ruling on the changes in abortion law voted on by the Texas Legislature in special session this summer. The ruling was mixed. [Entire ruling here.]

There was nothing related to prohibiting abortions after 20 weeks that was found problematic. This part is consistent with many other states, and is in line with recent scientific evidence of pain in the fetus after that gestational age. That part of the bill is set to go into effect September 1, 2014.

Monday’s ruling mainly focused on the requirement that abortion doctors have admitting privileges at a hospital within 30 miles of the clinic. If doctors do not seek and receive such privileges, then 13 abortion clinics in the state could be closed—and that was set to be enforced this past Tuesday, so the judge’s ruling agreed with an injunction against enforcement.

As the Houston Chronicle reported, US Federal District Judge Lee Yeakel “said the requirement for admitting privileges was unconstitutional because it poses an undue burden on women seeking an abortion and has no ‘rational relationship to improved patient care.’”

My son Political Sphere is looking at the case from a lawyerly point of view. It appears the case was ruled on using the wrong basis—strict scrutiny rather than undue burden, and probably based on burden on the wrong person. I don’t understand the terms as well as he does, but I’m going to attempt to describe the ruling and what went wrong, in lay terms that I understand.

A finding of lack of rationale does not necessarily lead to an undue burden ruling. But if there is a rationale, the law must be considered constitutional unless there is a significant and certain undue burden. In this case, the judge ignored rationale and decided that any burden was “undue.”

Texas AG Greg Abbott
defendant in the case
photo from Houston Chronicle

There was no actual citation of a case, no plaintiff, where a woman was caused an undue burden; the law had yet to go into effect. But the law itself imposed no burden directly on women; it imposed a requirement on doctors. Yet there was also no case of a doctor attempting to meet the requirements of the law and being unable; that may have happened, but there is no such plaintiff in this case. The plaintiff is Planned Parenthood and affiliates against the State of Texas (technically against Attorney General Greg Abbott), simply claiming the law could conceivably cause an undue burden on women seeking an otherwise legal procedure.

All of this was discussed during the legislative hearings, but one of the main points of the legislation is that currently there is an exemption for abortion clinics that is not available for all other ambulatory surgical centers, which do require doctors to have hospital admitting privileges. For the sake of women’s health, is there a reason for exempting only abortion clinics? The legislature could not find such a reason. On the other hand, the legislature could see a rationale for upgrading abortion clinics to bring them in line with similar medical providers.

For comparison, let’s say a surgical center that specializes in hand surgery has a problem with a patient during the procedure. Let’s say it’s something like unexpected bleeding where a transfusion is needed, or a negative reaction to anesthetic causing cardiac arrest or breathing difficulties. The doctor would rush the patient to the nearest hospital, where he would continue as the primary doctor, get the patient admitted without stopping for paperwork (because the doctor has all the information on the patient), and the doctor continues to treat the patient with the additional help of equipment and specialists available at the hospital.

Note that there is no handoff at the hospital door at which time the patient ceases to be that doctor’s patient and is now a new emergency patient at the hospital, with new doctors quickly having to familiarize themselves with the patient, assessing what has happened and what should be done. Continuity with the doctor is a plus for the patient in these rare circumstances, and that is why it is required of ambulatory surgeons.

It’s similar also to a regular OB-GYN, who sees the patient repeatedly at an office or clinic during the pregnancy and then meets the patient at the hospital they’ve agreed upon when it’s time for the delivery. Some OB-GYNs have birthing centers, where most deliveries can be done. But if there is a rare but severe emergency, the hospital where the doctor has admitting privileges is the backup plan. The doctor who knows the patient continues as the primary physician—with the additional help the hospital offers. Again, continuity with the doctor is a plus for the patient, and that is why admitting privileges are required.

It’s different for paramedics, who give limited emergency medical care and then turn the patient over to a hospital emergency team. The paramedics have a preliminary job—to care for the patient until the hospital can take over. They are likely to go to whichever hospital is most convenient. The paramedic doesn’t need admitting privileges, because the paramedic will not serve as the primary physician once the patient has been turned over to the hospital for care. Nor was the paramedic a doctor engaging in a surgical procedure the led to the emergency need for care.

In the abortion ruling, Judge Yeakel seems to have based his decision on testimony from an emergency room doctor from Houston:

Jennifer Carnell, an emergency room physician at Ben Taub Hospital in Houston, Texas, testified that she has never had an occasion to consider whether an incoming patient’s physician has admitting privileges at the hospital. Additionally, she would not have treated any patient differently if she were aware of that fact. [ruling, p. 11]

What this testimony described was a handoff—as in the case of a paramedic, rather than an admission as in the case of an ambulatory surgical emergency. The testimony is irrelevant—unless you’re questioning the legitimacy of asking any ambulatory surgeon to have admitting privileges, which was certainly beyond the scope of the case. All the other types of doctors continue caring for their patient after admittance to the hospital. Abortion doctors do not. There is no reason given for why they are not expected to continue care for their patient. Why are they the exception to the rule? Is it better for the woman’s health to have the care of their doctor cut off when they reach the hospital? The judge’s ruling says yes.

On the radio, after the ruling, the top of the hour news kept repeating the statement that the injunction against implementing the law was given because it was found that doctor admitting privileges “weren’t shown to improve health for the mother and the baby.” That’s right—the statement included the health of the baby. Let’s be clear: the purpose of the abortion was to kill the baby, but the ruling was reportedly partially based on whether the baby’s “health” would be improved by having doctor admitting privileges.

Ironically, if the abortion doctor were to continue care of mother and child in the hospital, that could lead to worse health outcomes for the child than being handed over to an emergency room—because the doctor’s purpose is to see to the death of the child.

Note, however, that the ruling itself does not include any mention about the health of the fetus, baby, or child—only mention of the mother’s health. So that was just a reporting error.

Back to strict scrutiny as opposed to undue burden. If I understand correctly, strict scrutiny is a higher standard, and it is being required of the state, rather than the plaintiff, to prove not only that there is rationale for the requirement, but also to prove that there are no cases in which a single person could be deprived of a legal right. The undue burden level would be lower; the state could simply show that there is a rational reason for the requirement, and that alternatives remain for those seeking abortion services.

When there is no case of any actual person being harmed, making the ruling the way Judge Yeakel did is probably both the wrong approach and the wrong standard.

The next step is the 5^th Circuit Court of Appeals; they previously overturned Yeakel’s ruling against Texas’s requirement for a sonogram to be shown prior to an abortion. AG Greg Abbott believes, however the 5^th Circuit rules, the case will be appealed to the US Supreme Court.

My opinion is that Texas did not overstep its bounds by requiring abortion clinic doctors to comply with the same rules as other ambulatory surgical centers; there is a rationale, and not all options are eliminated.

While hospitals set their own standards about who gets admitting privileges—and therefore it is possible some abortion doctors could be prevented from meeting the requirement—there is no evidence yet of a doctor trying to comply and being unable. There is only the hue and cry that the law might make getting care less convenient for some hypothetical abortion seeker.

Sen. Wendy Davis, from Houston Chronicle

State Sen. Wendy Davis, who filibustered the bill in the first special session back in June, which led to its easy passage in a second special session, carefully avoided mention of “abortion” in her response. She said, “Texas families are stronger and healthier when women across the state have access to quality health care.” That is liberal-speak. Women, particularly women in families, have many many options for health care.

Women seeking abortions are rarely in families, and since families include children but abortions snuff out the life of children, Davis’s statement is pretty much a lie to cover up the ugly baby-killing facts of abortion. She also went on to say, “I would rather see our tax dollars spent on improving our kids’ schools than defending this law”—completely missing the irony that, if the law hadn’t been attacked, no money would have to be spent defending it, so she ought to connect Planned Parenthood with unnecessarily using up state funds, because the state is required to defend its laws.

Davis is running for governor—based solely on her notoriety following the abortion filibuster. She has no other experience to recommend her to the top executive job in one of the biggest states. Yet she is afraid to say the word. In an odd way, I find that comforting after a bad day in the courts.