Texas' most recent abortion regulations, found in H.B. 2, were upheld by the Fifth Circuit on Thursday.
Finding that the district court both misapplied standards and misconstrued evidence, the Planned Parenthood of Greater Texas v. Abbott Court found that both the medical abortion and "admitting privileges" regulations were constitutional and not an undue burden to women. This ruling threatens the Fifth Circuit's other pending abortion case in Mississippi, which is scheduled for hearing in April.
How did the court come to support these abortion regulations?
Rational Basis Is a Low, Low Bar
Most of the ink spilled by Judge Edith Jones in penning the Planned Parenthood opinion was spent on how to properly evaluate the Texas "admitting privileges" requirement under a substantive due process challenge.
The difficulty comes down to the interpretation of two landmark abortion cases, Casey and Gonzales. Casey cemented the undue burden test for determining whether a state law was either intended to or inadvertently places an undue burden on a woman's right to an abortion prior to fetal viability. Gonzales states that in addition to not providing an undue burden, the regulations must pass rational basis review.
The Fifth Circuit is correct to note that rational basis is extremely deferential to the state and may require only a "conceivable rationale" for it to pass muster. Thus, the district court's choice of weighing any evidence against at least four alleged rational bases for H.B. 2's admitting privileges requirement was improper. Even if there is an active debate about the purpose of the legislation, the burden is on the plaintiff to show that there is no rational basis, not the state.
Couldn't Find an Undue Burden
One of the criticisms of the undue burden standard as applied since Casey is that courts have continually rejected that a new abortion regulation was an undue burden. This writer thanks his Con Law II professor for attaching the phrase "she'll never see an undue burden" to this standard (said in the tune and cadence of the Rolling Stones' "Beast of Burden").
This Texas case is another in the long list of cases where courts have found that while regulations may close clinics or increase distance of travel to available clinics, the burden isn't "undue." Judge Jones rolled out her chestnut about distance from oral argument, opining that three hours on a Texas highway is the most any abortion seekers in the Rio Grande Valley would have to drive to reach a clinic under H.B. 2 -- not an undue burden.
Judge Jones may be right in terms of SCOTUS' precedent. Casey also involved hours of driving and the Pennsylvania law additionally imposed a 24-hour waiting period -- which was still upheld by the Court. Since Texas exempts women from the waiting period who travel more than 100 miles to reach the nearest clinic, the Court reasoned its laws are less burdensome than the ones in Casey.
The Court also noted that despite claims of one-third of the state's clinics closing, no showing was made that "any woman will lack reasonable access to a clinic within Texas."
Looking to Mississippi
The Fifth Circuit still plans to hear Mississippi's admitting privileges case in April, despite many of the same substantive due process arguments being dispatched in the Texas ruling. Perhaps the difference in the cases will come down to the clinic availability in the state. Texas had 13 clinics before the law passed, Mississippi only has one.
It's certainly a better argument that having to travel out of state for an abortion is an undue burden, and this question may need to be answered by the U.S. Supreme Court.
- Appeals court upholds challenged parts of Texas abortion law (CNN)
- First 20-Week Abortion Case Punted; Recess Appointments Doomed? (FindLaw's U.S. Supreme Court Blog)
- Texas Abortion Law Unblocked by 5th Circuit (FindLaw's U.S. 5th Circuit Blog)
- Planned Parenthood Sues Texas Over Abortion Law (FindLaw's U.S. 5th Circuit Blog)