The Supreme Court earlier this week stayed enforcement of key provisions of HB2—Texas’ sweeping anti-abortion law—pending the Court’s decision whether to hear an appeal in the case. Only 9 abortion clinics would have remained open in the state had the law gone into effect leaving over 1.3 million women of reproductive age more than 100 miles from the nearest abortion clinic.
The Fifth Circuit’s Unsound Reasoning
Prior to the Supreme Court’s decision, the Fifth Circuit had overturned most of a district court’s decision striking down this dangerous requirement. The law requires that abortion providers obtain admitting privileges at a hospital within 30 miles of the abortion clinic and the requirement that clinics providing abortion services meet the standards for ambulatory surgery centers. The Fifth Circuit also held that the requirements could be applied to the sole abortion provider in El Paso, Texas because women in that region would be able to travel to an abortion provider in Santa Teresa, New Mexico. However, the Court did enjoin the state from requiring the sole abortion provider and clinic in the Rio Grande Valley to comply with the admitting privileges requirement and two of the requirements for ambulatory surgery center.
These restrictions, often called targeted regulations of abortion providers or TRAP laws, are opposed by major medical organizations including the American College of Obstetricians and Gynecologists (ACOG) and the American Medical Association (AMA) because they “imposes government regulation on abortion care that jeopardizes the health of women.” As both ACOG and the AMA note, abortions are an extremely safe procedure and complications requiring hospitalization are incredibly rare. There is no medical reason to require abortion providers to have admitting privileges nor is there any reason for abortion facilities to comply with more stringent requirements than other medical facilities that perform procedures with similar, or even greater, risks.
Yet in upholding the abortion restrictions, the Fifth Circuit ignored the medical evidence, stating that the district court erred in weighing the burdens imposed by the restrictions against the medical efficacy of the restrictions. The Supreme Court has never upheld a law that limits abortion services without first establishing that the law furthers a valid state interest. In addition, both the Ninth and Seventh Circuits have held that the courts must “weigh the burdens against the state’s justification, asking whether and to what extent the challenged regulation actually advances the state’s interest.” Such an inquiry is necessary to determine whether the restrictions impose an undue burden on a woman’s constitutionally protected right to abortion. As the Supreme Court stated in City of Akron, “The existence of a compelling state interest in health . . . is only the beginning of the inquiry. The State’s regulation may be upheld only if it is reasonably designed to further that state interest.”
Texas’ Abortion Restrictions Threaten Women’s Health
Although the stay is good news for Texas women, it doesn’t undo the damage done by other abortion restrictions including provisions of HB2 that have already gone into effect. Since 2013, when HB2 was passed, more than 20 abortion clinics in the state have closed. As a result of these closures, many women seeking abortions were turned away from clinics and some of those women were unable to obtain abortions.