HB2: Or, Why Everyone Should Be Keeping An Eye on Texas

I know I’m a few days late in writing this, but bear with me.  Several days ago, the Fifth Circuit Court of Appeals ruled to uphold HB2, the Texas TRAP law that will ultimately cause all but seven abortion clinics in Texas to close their doors.  This is concerning, not just for women in Texas-~-though it is certainly concerning for them-~-but for reproductive rights across the United States.  There is already talk of appealing to the Supreme Court, which is has a far more balanced composition that the Fifth Circuit, but in the meantime, the ruling has very real implication for pregnant people and potentially pregnant people in Texas.

A little history on HB2: the law was first passed in Texas in 2013, despite Wendy Davis’ now-famous filibuster to block it. Like all TRAP laws, HB2 uses the pretext of “safety” to shut down abortion clinics by imposing stringent rules on the clinics which provide these services. The Texas law included three major requirements: that doctors performing abortions have admitting privileges at a hospital within 30 miles-~-which is literally impossible in many rural areas-~-, that all abortion-providing clinics comply with the standards for ambulatory care centers, and that medical abortion be performed in an ambulatory care center and be performed in accordance with outdated FDA protocols that doctors believe are less safe.

Opponents of HB2 filed against it after its passage in 2013, and a federal district judge ruled that it violated the standard of undue burden set forth by the Supreme Court in Planned Parenthood v Casey.  The case was appealed, and in early October of 2014, a Fifth Circuit judge ruled that the law was constitutional, though an exception was carved out for the Rio Grande Valley, which is too remote to allow for the admitting privileges provision to even theoretically make sense.  On October 10, 2014, the Supreme Court put a hold on enforcement of several parts of HB2, particularly the requirements that would have forced clinics to perform costly renovations in order to meet the standards of ambulatory surgical centers, and carving out exemptions for El Paso and McAllen with regards to the requirement for admitting privileges. That’s the last time I wrote about this case, in a post in which I argued that the requirements should be ruled unconstitutional under the undue burden standard, just as the first federal judge had. The case was then appealed and placed before a panel of Fifth Circuit judges for consideration, with the ruling in favor of HB2 being handed down earlier this week.

This is concerning on two levels.  The first is practical: it is now virtually impossible for individuals in Texas to access abortion care if they do not live in a major metropolitan area.  Before the law’s passage, Texas had 40 licensed abortion clinics; with the law now in effect, that number drops to eight.  Many pregnant persons, especially those who are from low-income households, lack the time and resources needed to travel hundreds of miles to actually access services.  This is the map of remaining abortion clinics, released by the Huffington Post last year:

This means that for pregnant persons living in western Texas, the nearest clinics are actually now in Las Cruces, NM.  Keep in mind that the Fifth Circuit ruled last year to keep the last remaining clinic in Mississippi open on the basis that forcing women to go out of state for abortion services did, in fact, constitute and undue burden-~-a fact which I can only hope the court remembers if opponents of the law decide to appeal it to the entire Fifth Circuit.

Practical implications aside, legal rulings set legal precedents that ultimately shape how our laws are interpreted and applied across the country, meaning that if this ruling is allowed to stand, it could have serious ramifications in the fight for reproductive rights across the United States. The Fifth Circuit ruled that the Texas legislature does have the right to create laws that support the compelling state interest of protecting life, and because TRAP laws like HB2 are disguised as public health measures, proponents of the law were able to make the case that their goal is to protect fetal life and the safety of the mother.  What they actually want is to make it next to impossible for people to access abortion, therefore ensuring that fetuses are brought to term even when having a child is a financially, socially, or even medically unsound decision.  Legally speaking, it appears that the court is giving the legislature license to over-regulate abortion in the name of “public health”, even when the requirements they are setting are not actually related to their stated health goals.  The federal judge who initially ruled against HB2 had been quick to point out, as have many opponents of the law, that there is no link between admitting privileges and patient outcomes, and there is very little evidence that ambulatory care standards are necessary for abortion centers.

More than that, though, is the concern that the Fifth Circuit’s analysis may provide a fatal blow to Roe v Wade, the 1973 law that established legal abortion as a standard in the U.S.  Writing for Think Progress, Ian Millhiser explains that “the Fifth Circuit takes Gonzales‘s conclusion about the legislature’s discretion when medical “uncertainty” exists and runs with it — holding that ‘medical uncertainty underlying a statute is for resolution by legislatures, not the courts’ even when a sham health law such as HB2 is challenged.”  The Fifth Circuit has essentially taken the opinion articulated in Gonzales v Carhart, stating that the legislature may step in where the medical community cannot provide definitive answers, in order to regulate health concerns.  This is, in this blogger’s opinion, a slippery slope, because there will always be areas of uncertainty in medicine, and doctors will still always be better informed than politicians about how to weigh that uncertainty.  But I digress; the ruling essentially means that as long as a state can claim a compelling state interest related to women’s health, they can fight a facial challenge to abortion restrictions with high probability of success.

But this means that opponents of these laws are going to be stuck trying to preserve reproductive rights using as-applied challenges, which only deal with the way that laws impact particular plaintiffs.  That means that we get less applicable precedent, and it is harder to challenge these restrictions.  The reality is that proponents of a right to choose will have no choice but to appeal this decision yet again, possibly bringing it all the way to the Supreme Court, rather than let this law and this precedent stand.

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~ by Randi Saunders on June 13, 2015.

One Response to “HB2: Or, Why Everyone Should Be Keeping An Eye on Texas”

  1. […] said, while I was doing the research for my last post on HB2 and the Fifth Circuit’s ruling in Whole Women’s Health v Lakely, I started revisiting […]

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