Clock ticking as Supreme Court approaches deadline for decision on pro-life Texas law HB 2

Editor’s note. This appeared in the June digital edition of National Right to Life News. Along with the many news stories, commentaries, and analyses, this editorial can be read at www.nrlc.org/uploads/NRLNews/NRLNewsJune2016.pdf.

I trust you are reading the June issue cover to cover and forwarding stories to your pro-life family and friends.

texas-prolifereNo one except the eight Supreme Court justices know precisely when the High Court will rule on a host of controversial cases, some of which raise new issues, others of which will finesse previous rulings. Could be this week, could be the end of the month.

Our case, of course, is one we have written dozens and dozens of stories about: Whole Woman’s Health v. Hellerstedt— the pro-life 2013 Texas law known as HB 2.

HB 2 was once best known outside the Lone Star state for the filibuster that temporarily derailed the law. Pro-abortion state Senator Wendy Davis catapulted her role in that filibuster to national fame, which tempted her to run what proved to be a disastrous 2014 campaign for governor. But now that the Supreme Court is rendering a decision, people are paying attention to the substance and what might be the fallout.

At issue in HB 2 are two provisions: (1) that abortion clinics meet the same building standards as ambulatory surgical centers (ASCs); and (2) that abortionists have admitting privileges at a nearby hospital for situations of medical emergencies.

What gives the case such importance is that the justices will be challenged to flesh out yet again what constitutes an “undue burden” on the “right” to abortion

Austin-based U.S. District Judge Lee Yeakel declared the requirements unconstitutional but was reversed by the U.S. Court of Appeals for the 5th Circuit. [1] As we have written previously, the various and sundry challenges to H.B. 2, the twists and turns, are mind-numbingly complex.

The overall thrust of the various briefs challenged HB 2 contained nothing particularly new, with one exception intended to generate opposition to the law and pressure on the justices.

The law, the New York-based Center for Reproductive Rights (CRR) argues, imposes the aforementioned “undue burden” on women seeking to abort and, contrary to assurances by the state, does not improve medical safety for women.

Referring specifically to the requirement that abortion clinics meet the standards of ambulatory surgical centers, the CRR in its brief told the justices that nearly half of the 40 abortion clinics operating in Texas closed after the law passed and “many more would shut down,” if the law is upheld, according to Reuters.

But as NRLC’s Dr. Randall K. O’Bannon has explained in great depth, almost none of these closures can be definitely said to be related to the parts of the law that have been challenged in Whole Woman’s Health vs. Hellerstedt. As for the argument that there are (or will be) longer waits for abortion, that rests on the dubious assertion that other abortion clinics (particularly Planned Parenthood’s “mega-clinics) won’t pick up the slack.

CRR lawyers also insisted abortion is “safer than many other common medical procedures.”

The major new wrinkle, as NRL News Today wrote about extensively, was a brief by over 100 female lawyers touting the significance of their abortions to achieving their aspirations. Not a word about the babies, of course, and (naturally, we are assured) their families were 100% behind the decision to eliminate one of their members.

Before we address briefs filed by the state of Texas and other defenders of HB 2, it’s important to recall the decision written by Judge Edith Jones for a unanimous three-judge panel of the U.S. Court of Appeals for the 5th Circuit, upholding provisions of Texas’ H.B. 2.

In her 34-page opinion, Jones recalled something never, ever mentioned in press accounts: “Planned Parenthood conceded that at least 210 women in Texas annually must be hospitalized after seeking an abortion.”

Judge Jones also wrote, “Witnesses on both sides further testified that some of the women who are hospitalized after an abortion have complications that require an OB/GYN specialist’s treatment.” She added, “Against Planned Parenthood’s claims that these women can be adequately treated without the admitting-privileges requirement, the state showed that many hospitals lack an Ob/Gyn on call for emergencies.”

Then there is the thorough and thoughtful 44-page brief filed by Texas Attorney General Ken Paxton.

Among many other arguments, Paxton reminded the justices that

Petitioners ignore the fact that under the Fifth Circuit’s decision, which granted as-applied relief in McAllen, every metropolitan area with an abortion facility operating today in Texas will still have an operating abortion facility if the ruling takes effect

In addition, he wrote, “States are given wide discretion to pass medical regulations.” Paxton explained that the admitting privileges requirement had already been upheld by courts in a separate lawsuit which “correctly conclude[d] that the challenged provisions of HB2 do not facially impose an undue burden.”

Petitioners [those whom CRR is representing] ask this Court to depart from a quarter-century of this Court’s abortion jurisprudence by judging for itself the medical effectiveness of HB2’s requirements and balancing it against the burdens purportedly caused by HB2. In short, petitioners would have this Court serve as “the country’s ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States”—a role this Court has specifically declined to assume.

“[The abortion providers] wish to proceed as if their first lawsuit against HB 2 never happened,” the Texas attorney general continued. “But they litigated that case to a final judgment, and arguments and evidence they chose not to present there are barred.”

Last January, NRLC filed a brief in Whole Woman’s Health v. Cole. James Bopp, Jr., NRLC General Counsel and co-author of the brief, explained that key to the case is the level of scrutiny federal courts should apply to decide if such laws are constitutional

The NRLC brief addressed the Court’s “undue burden” scrutiny, explaining that the 5th Circuit correctly followed that applicable test.

The brief put the undue-burden test in the context of the Supreme Court’s early adoption of the role of national medical board, in which it substituted its judgment for that of legislatures in striking quality-control regulations of abortion providers. It did this though it originally said, in Roe v. Wade, that states could enact such regulation.

The NRLC brief then explained how Justice O’Connor argued in her dissent in the 1983 Akron case that the Court should adopt a more deferential undue burden test. The brief noted that NRLC submitted a friend-of-the-court brief in Casey, the 1992 Supreme Court decision, stating what would be necessary to make an undue burden test workable.

In Casey, the Court adopted key aspects of that approach, in a decision that Justice O’Connor co-authored. Casey’s lower-scrutiny, more deferential, undue burden test got the Court out of the medical-board role.

The NRLC brief explained that the nature of the undue burden test from Casey must be understood in light of Justice O’Connor’s understanding of it in her Akron dissent. The brief showed that Casey’s undue burden test, properly understood, supports the 5th Circuit’s analysis. And it explained that the concerns that caused the High Court to reaffirm Roe generally in Casey while abandoning the medical-board role by greater deference, require the Court not to abandon the proper understanding of the undue burden test (unless the Court wants to overrule Roe).

As Bopp explained, “After striking many reasonable medical regulations, the Supreme Court decided to abandon the medical-board role in Casey. It did so with a lower-scrutiny, undue burden test. The Texas challengers want the Court to again be the national medical board by reviving strict scrutiny. That would damage the rule of law and the Court’s legitimacy.”

Finally it’s important–vitally important–to re-read the four-part-series written about the oral arguments by NRLC’s Dr. Randall K. O’Bannon. Dr. O’Bannon highlighted assertions made by opponents which were highly questionable , at best, and based on shoddy research, at worst.

[1] Pro-abortionists never challenged the Pain-Capable Unborn Child Protection Act. Also not before the justices is a provision that requires the abortionist to be in the same room as the woman receiving the chemical abortifacients (which is not the case with so-called ‘web-cam” abortions) and that abortionists follow the protocol approved by the FDA for the use of the two-drug “RU-486” abortion technique.