Abortion

at the Supreme Courts Door

By: Linda Greenhouse | October 15th, 2015
Despite a near-universal assumption that the Supreme Court will take up an abortion case in its
new term, the general chatter hasnt included much detail about the specific issue, the stakes or
the prospects. This column is an effort to address those questions. The stakes couldnt be higher,
either for women who live in the growing number of states governed by anti-abortion politicians
or for the court itself. During the next few weeks, the justices will decide whether to hear an
appeal filed last month by several Texas abortion clinics. The clinics are among those that will be
forced to close under a law that the United States Court of Appeals for the Fifth Circuit upheld in
a series of decisions culminating in June with Whole Womans Health v. Cole.

Before passage of the Texas law, H.B. 2, two years ago, there were more than 40 abortion clinics
in 16 Texas cities. Unless the Supreme Court overturns the Fifth Circuits decision, there will be at
most 10 clinics in a state with 5.4 million women of reproductive age. There will be clinics in
Houston, Austin, San Antonio and Dallas-Fort Worth, along with one permitted by the Fifth
Circuit to remain open in McAllen under a bizarre condition: The clinic and its one doctor may
serve only those women who live in the surrounding four-county area. (Maybe the Fifth Circuit
was afraid that women from all over Texas might otherwise flock to the impoverished and
remote Rio Grande Valley for their abortions.) There will be no clinics at all in the 500 miles
between San Antonio and the New Mexico border.

How do Texas and the appeals court justify such a result? H.B. 2 did not mandate the closing of
abortion clinics in so many words. It didnt have to. Rather, the requirements the law imposes on
abortion providers, following a template conveniently provided by a leading anti-abortion think
tank, Americans United for Life were intended to bring about that result.

The law requires doctors who perform abortions to have admitting privileges at a hospital no
farther than 30 miles away. It also requires abortion clinics to be retrofitted as mini-hospitals, a
requirement that also applies to clinics that offer only medication abortion, which involves
handing a patient two pills to swallow and telling her to go home. Rick Perry, the governor who
signed H.B. 2 into law, declared several months earlier that his goal is to make abortion at any
stage a thing of the past. Addressing an anti-abortion rally, the governor said: The ideal world
is one without abortion. Until then, we will continue to pass laws to ensure that they are rare as
possible.

Governor Perry, not for the first time in his political career, was off-message. The official reason
for the new requirements is to protect womens health to raise standards of care and ensure
the health and safety of all abortion patients, as the state told the Supreme Court in the brief it
filed last week urging the Supreme Court not to hear the clinics appeal. Is Texas suffering from

an abortion-related health problem? Not exactly. There were 360,059 abortions performed in
Texas from 2009 through 2013 that is, before H.B. 2 took effect resulting in no deaths and a
minuscule rate of complications requiring a hospital visit. (Nationwide, the major complication
rate from first-trimester abortions by the method commonly used in Texas is 0.05 percent.)

The extremely low complication rate is a reason that doctors who limit their practice to abortion
cant get hospital admitting privileges. Many hospitals require doctors to admit a certain number
of patients in order to maintain privileges. One Dallas clinic was forced to close in June after 36
years because its medical director, while initially offered admitting privileges, couldnt meet the
requirement to send 48 patients a year to the hospital. Even the more common 10-patient
requirement is impossible for abortion providers to meet. (A complication rate of 0.05 percent
translates to five complications per 10,000 procedures.)

Laws that single out abortion practice for restrictions that dont apply to medical procedures of
equivalent or greater risk are known as TRAP laws, for targeted regulation of abortion providers.
There is no doubt that H.B. 2 is a TRAP law; Texas permits doctors practicing in ordinary medical
offices to administer general anesthesia, which is not typically used in abortions, and to perform
colonoscopies and liposuction, both of which have higher mortality rates than abortion. A friend-
of-the-court brief filed by the American College of Obstetricians and Gynecologists, the American
Medical Association, and other medical groups asserts that the H.B. 2 requirements fail to
enhance the quality or safety of abortion-related medical care and, in fact, impede womens
access to such care by imposing unjustified and medically unnecessary burdens on abortion
providers.

The medical organizations brief makes a telling point about the admitting-privileges requirement.
The average Texas county is, currently, 111 miles from an abortion clinic. So a woman who
experiences a complication after returning home would go to a nearby hospital for emergency
care rather than to a distant hospital where the doctor who performed the abortion might have
privileges.

None of these points appear to shake Texas from its all for womens health mantra, but heres
one that should. The state claims in its Supreme Court brief that the absence of an abortion clinic
in the entire western half of the state is of no concern because women in El Paso, where the two
abortion clinics will have to close, can simply travel one mile across the state line to a clinic in
nearby Santa Teresa, N. M. New Mexico, however, has not imposed any TRAP laws. It requires
neither admitting privileges nor a hospital-like setting. So Texas interest in protecting the health
of its abortion patients evidently stops at the state line even as it sends women seeking abortions
in West Texas across that line

So far, Ive talked only about policy and not about law, and its law that we assume the Supreme
Court justices will consider. In June, just before the summer recess, the court ordered a stay of
the Fifth Circuit decision, preserving the status quo until the justices decided whether to hear the
appeal. If the court grants the case, the stay will last until the final decision. If the court turns the
appeal down, the stay will dissolve and the clinics will close.


Granting the stay should have been automatic; of course keep things in place when the
consequences of doing otherwise are so drastic. A stay requires the votes of five justices and, in
fact, there were only five. Four justices noted their dissent: Chief Justice John G. Roberts Jr. and
Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito Jr. Justices who dont agree with
an administrative order like a stay dont always make their dissent public. Its a choice, and these
four justices chose to go on the record as being willing to let three-quarters of the abortion
clinics in Texas shut down without a Supreme Court hearing.

That leaves, of course, the other five: Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia
Sotomayor, Elena Kagan and you guessed it Anthony M. Kennedy. Justice Kennedy is the
only justice left from the majority in Planned Parenthood v. Casey, the 1992 decision that by a
vote of 5 to 4 preserved the constitutional right to abortion. The Casey decision, which remains
the law, subjected abortion regulations to a new undue burden test, defining undue burden as
a state regulation that has the purpose or effect of placing a substantial obstacle in the path of a
woman seeking an abortion of a nonviable fetus.

Thats a definition both wordy and porous. In an article to be published in the Yale Law Journal
titled Casey and the Clinic Closings: When Protecting Health Obstructs Choice, my colleague
Reva B. Siegel and I argue that under Casey, as properly understood and as informed by the
courts 2007 decision that upheld the Partial Birth Abortion Ban Act, the H.B. 2 requirements
impose an undue burden and the Fifth Circuit was wrong to uphold them. (Five years ago, she
and I published a book on the history of the abortion debate, available here as a free download
from the Yale Law School library.)

In Casey, the court modified Roe v. Wade to empower the states to act throughout pregnancy
not just in later trimesters as in the earlier case to protect both unborn life and maternal
health. But the court limited the ways in which the state can do both those things, and it applied
separate standards for each. To protect the unborn, the state can seek to dissuade a woman
from having an abortion through such measures as a waiting period and mandatory counseling,
both of which the Casey decision upheld. But at the end of the day, the state cannot prevent a
woman from carrying out her decision to terminate a pregnancy; in the words of the opinion, the
state can employ methods calculated to inform the womans free choice, not hinder it.

The court subjected health-related regulations to a separate analysis. Unnecessary health
regulations that have the purpose or effect of presenting a substantial obstacle to a woman
seeking an abortion impose an undue burden on the right, the court said. Reva Siegel and I
argue that this means that health-related regulation of abortion must be consistent with ordinary
medical practice and must actually serve the asserted purpose: protecting a pregnant womans
health. If it serves no demonstrable health-related purpose, then the regulation most likely
represents an effort by the state to protect unborn life by means that Casey rules out means
that hinder rather than inform, prevent rather than persuade.

Courts around the country are looking skeptically at health-justified abortion regulations that
dont actually protect health. In upholding an injunction against a new admitting-privileges
requirement in Wisconsin, Judge Richard A. Posner of the United States Court of Appeals for the
Seventh Circuit found the medical evidence lacking. He interpreted the undue-burden standard
as requiring courts to weigh the purported justifications for a restriction against the burdens that
the restriction would impose on access to abortion. The feebler the medical grounds, the likelier
the burden, even if slight, to be undue in the sense of disproportionate or gratuitous, Judge
Posner wrote.

Applying a similar analysis, the United States Court of Appeals for the Ninth Circuit blocked
Arizonas restriction on medication abortion, with Judge William Fletcher writing: Plaintiffs have
introduced uncontroverted evidence that the Arizona law substantially burdens womens access
to abortion services, and Arizona has introduced no evidence that the law advances in any way
its interest in womens health. (The Supreme Court turned down the states appeal.) And in June,
the Iowa Supreme Court used similar reasoning to invalidate a rule imposed by the states Board
of Medicine that required a doctor to be present when a patient received abortion-inducing
medication.


Against this background, the Fifth Circuits decision in the Texas case, adopting a rule of nearly
total deference to the states claims, stands out. In our circuit, we do not balance the wisdom or
effectiveness of a law against the burdens the law imposes, Judge Jennifer Walker Elrod wrote
for the circuit in a preliminary phase of the case. The appeals court rebuked Lee Yeakel, the
federal district judge who had struck down H.B. 2, for even questioning the validity of the states
health justifications. Yet questioning and balancing is exactly what a court must do if it is to
adhere to the bargain the Supreme Court struck in Casey: States can vindicate their interest in
protecting unborn life through means that seek to inform and persuade, but not by destroying
the infrastructure that makes it possible for women to exercise the constitutional right to
abortion.

So is the future of the right to abortion once again still in the hands of Justice Kennedy? Its
nearly impossible to conclude otherwise. Given his vote for the stay, its all but certain that he
will at least be willing to give the Texas abortion clinics a hearing. The right to abortion, as
announced in Roe v. Wade and more or less preserved in Planned Parenthood v. Casey has its
origins in Griswold v. Connecticut, the 1965 decision that established the constitutional right to
use birth control. The most recent step on the constitutional journey that Griswold initiated 50
years ago came in June with the same-sex marriage decision, Obergefell v. Hodges. Preserving
the right to abortion as defined in Casey keeps the court on the path of individual liberty and
dignity that Justice Kennedys majority opinion in Obergefell celebrated. Permitting the state of
Texas to have its way will take us backward.
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Online: http://www.nytimes.com/2015/10/15/opinion/abortion-at-the-supreme-courts-
door.html