Mess With Texas

Please, y’all, mess with Texas, which, in addition to its already restrictive abortion laws, adopted a new law requiring all physicians providing abortion in the state to “have active admitting privileges at a hospital that is not further than 30 miles from the location of the abortion” or be subject to criminal penalties. Despite the state’s protestations that the law facilitated better medical care of abortion patients, a smart federal district court judge wisely concluded that the law was unconstitutional because it had no rational basis. Judge Lee Yeakel noted, inter alia, that federal law already requires all patients to receive equal care in emergency rooms, that many abortion doctors are unlikely to qualify for admitting privileges because their practices don’t yield enough hospital admissions or surgeries to qualify, and that other doctors who currently enjoy hospital admitting privileges are unwilling to jeopardize their positions by performing abortions. Thus the linkage between hospital admitting privileges and better patient care was tenuous. The district court also concluded that the law unconstitutionally placed an undue burden on Texas women’s abortion rights because “24 counties in the Rio Grande Valley would be left with no abortion provider because those providers do not have admitting privileges and are unlikely to get them.”

Nonetheless, the Fifth Circuit Court of Appeals, in an opinion written by Judge Edith Jones, reversed the district court’s ruling and allowed the abortion law to stand in Planned Parenthood v. Abbott. Two years ago, the same Judge Jones reversed another wise district court judge in order to hold that a law requiring intrusive sonograms (even when not medically indicated), and misleadingly entitled the Woman’s Right to Know Act, was constitutional.

Abbott is a model of poor reasoning calculated to uphold a restriction while denying it is restrictive. Although the appeals court recited the formula that only “where it has a rational basis to act, and does not impose an undue burden” may the state regulate abortion, it eviscerated the constitutional standard protecting abortion rights of any meaning.

Rational Basis. The Fifth Circuit ruled the district court was too harsh in applying rational basis test to the state’s action, instead concluding “it is not the courts’ duty to second guess legislative factfinding.” The appeals court misread rational basis review, however, which has always required that a legislative action that has no purpose, or no purpose other than animus or singling out of unpopular groups, cannot stand. Ironically, the usual appeals court rule that appeals courts should defer to the trial court factfinder unless its findings are “clearly erroneous” was largely ignored by the Fifth Circuit. Instead, the appeals court picked through the facts that favored the state, admitting that it would allow the state to favor “rational speculation, . . . not empirical data” when it regulates abortion.

Undue Burden. The Court then eviscerated the undue burden standard. According to the Supreme Court’s ruling in Planned Parenthood v. Casey, “a finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Although the district court did not parse the Texas law exactly in the order that those words appear in Casey, the court’s reasoning was clear. A law with no rational basis, and with which the regulated parties cannot comply, had the purpose or effect of leaving some parts of Texas without abortion providers, which is a substantial obstacle to the abortion right.

Instead of accepting that a law with no rational basis has no purpose, however, the circuit court, first ruled that Planned Parenthood had not submitted any evidence that the purpose of the law was to put a substantial obstacle in the path of the abortion right, even though the lack of rational basis for the law clearly provided such evidence. Second, according to the appeals court, there was no effect of substantially burdening women’s access to abortion. The appeals court took issue with the district court’s statement that two clinics in the Rio Grande Valley might close, seemingly satisfied that if only one clinic closed there would be no substantial obstacle to abortion. In the court’s harsh words:

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. As the motions panel correctly concluded, based on the trial court record, an increase of travel of less than 150 miles for some women is not an undue burden under Casey.

In other words, Texas women can still drive across their big state to Austin, Corpus, Dallas, El Paso, Houston or San Antonio for an abortion (although the Corpus facilities are expected to close in September because of the new regulations). The court, moreover, was silent that likely only 13 of 254 counties in Texas had abortion facilities because of prior restrictive regulations that the federal courts had sustained.

 Unfortunately, there is reason to worry that Texas women will do no better in the Supreme Court. After the Fifth Circuit issued a stay of the initial district court’s ruling of unconstitutionality—thus insuring that the law would take effect immediately despite the district court’s ruling—the Supreme Court upheld the stay by a 5-4 vote, with Justice Scalia suggesting that the state was likely to prevail on the merits. Dissenting Justice Breyer wrote, with Justices Ginsburg, Sotomayor and Kagan, that the “underlying legal question—whether the new Texas statute is constitutional—is a difficult question, I believe, that at least four Members of this Court will wish to consider irrespective of the Fifth Circuit’s ultimate decision.” If there is a fifth Member to uphold the Fifth Circuit, there could be an even bigger mess in Texas.

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Leslie C. Griffin

Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las Vegas, William S. Boyd School of Law. Professor Griffin, who teaches constitutional law, is known for her interdisciplinary work in law and religion. She holds a Ph.D. in Religious Studies from Yale University and a J.D. from Stanford Law School.