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.