A Texas law sets health standards for clinics. Opponents appeal to the Court.
As the Supreme Court opens its new term, it appears likely that abortion will be on the docket for the first time since 2007, when the Court upheld the federal ban on partial-birth abortion. The most significant case that the Supreme Court will likely accept involves a Texas law that, on Thursday, the Fifth Circuit allowed to go into immediate effect. It requires abortion clinics to meet the same health and safety standards that apply to ambulatory surgical centers.
Abortion advocates have vowed to take their opposition to the Supreme Court, where their case will join several other abortion cases competing for the Court’s attention. Cases challenging state regulations on admitting requirements and on abortion drugs such as RU-486 will also likely find their way onto the Court’s docket.
The Texas case presents the Supreme Court with its first opportunity in more than a decade to decide the constitutionality of state laws prescribing minimum health, safety, and operating standards for abortion clinics. In 2001 and again in 2003, the Court declined to hear cases challenging South Carolina’s comprehensive abortion-clinic regulations.
Twenty-eight states now have abortion-clinic regulations on the books. In the wake of the ongoing scandal over substandard conditions at abortion clinics across the nation, several states, including Arizona, Oklahoma, Pennsylvania, and Virginia, have recently enacted more-protective and more-stringent clinic standards.
Seventeen states mandate that individual abortion providers have hospital admitting privileges or a patient-transfer agreement with a local physician who has such privileges. These requirements are currently in litigation in four states and may reach the Supreme Court. In addition to Texas’s law, admitting-privileges requirements in Alabama, Mississippi, and Wisconsin have been challenged by abortion providers who are apparently unable or unwilling to secure such credentials.
The Texas case also presents the Court with the chance to clarify the scope of a state’s authority to regulate abortion in the interests of maternal health. Since Roe v. Wade, the Supreme Court has maintained that this interest “obviously extends at least to [regulating] the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that may arise.”
Further, in 2007, in Gonzales v. Carhart, the case upholding the federal ban on partial-birth abortion, the Supreme Court signaled its apparent willingness to uphold abortion regulations that protect women’s health and make good medical sense. The Texas case provides the Court with a clear opportunity to affirm this intention.
It would also ask the Court to address the apparent breakdown of the “undue burden” standard first utilized in Planned Parenthood v. Casey (1992), a landmark case. Importantly, in adopting the “undue burden” standard for evaluating abortion regulations, the Supreme Court specifically rejected the use of “strict scrutiny” analysis — our legal system’s most stringent form of constitutional analysis, often used to evaluate First Amendment and voting-rights claims — in the context of abortion.
Instead, the Casey standard essentially provides that an abortion regulation that serves a rational purpose (such as the protection of maternal health) is invalid only if its “purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before fetal viability.” Over the last two decades, federal courts have often struggled in applying this standard, and a number of federal courts have recently struck down state abortion regulations by imposing a quasi-strict-scrutiny analysis despite Casey’s clear guidance to the contrary.
The Fifth Circuit recognized and rejected this trend in Thursday’s opinion. First, it refused to apply the analysis used by the lower court — analysis that mimicked recent opinions from the Seventh and Ninth Circuits invalidating maternal-health regulations on abortion — that sought to balance “the efficacy of the ambulatory surgical center provision against the burdens the provision imposed.”
Under the operative Casey standard of review, a court must first determine if a state legislature had a “rational basis” to enact an abortion regulation. Under well-established Supreme Court precedent, the protection of maternal health meets that standard.
Once a rational basis has been established, the inquiry then turns to whether the regulation imposes an “undue burden” on women seeking abortions. In considering the state’s basis for enacting the regulation and the purported effectiveness of the means chosen to advance the state’s interest (in protecting maternal health), the court does not weigh them against any burden that the regulation might impose on a woman seeking an abortion. These are separate inquiries under the Casey standard.
As the Fifth Circuit correctly noted, an attempt to balance these distinct elements “ratchets up rational basis review into a pseudo-strict scrutiny approach by examining whether the law advances the State’s asserted purposes. . . . We have no authority to turn rational basis into strict scrutiny under the guise of an undue burden inquiry.” Having rejected the lower court’s misapplication of Casey, the Fifth Circuit found that the Texas law was likely to withstand constitutional scrutiny and dissolved the injunction against its enforcement.
Not surprisingly, abortion advocates greeted the ruling with histrionics and hyperbole, claiming that abortion access in Texas would be “destroyed” and that the law would close all but seven or eight abortion clinics in the state.
Tellingly, both the lower court and abortion advocates refuse to acknowledge two important truths.
First, the law itself will not close any abortion clinic. It is the abortion clinics’ inability or unwillingness to comply with medically appropriate health and safety standards that will result in clinic closures.
Second, mere access to an abortion clinic does not guarantee women’s health. After all, convicted abortionist Kermit Gosnell and his squalid West Philadelphia abortion clinic provided “mere access” to abortion.
Momentum is clearly building for the Supreme Court to weigh in on abortion regulations specifically designed to further a state’s interest in protecting women from the harms inherent in abortion. The Texas case provides the Court with a unique opportunity to further affirm the states’ compelling interests in protecting maternal health, to clarify the legal standards to be applied when evaluating abortion regulations, and to confront the often dangerous practices of an under-scrutinized and increasingly profit-driven abortion industry desperate to avoid meaningful legal oversight.
— Denise M. Burke is vice president of legal affairs for Americans United for Life.