A Few More Thoughts on HB2

IMPORTANT UPDATE: AS OF 6/29/2015, in a 5-4 order, the Supreme Court has moved to block the implementation of HB2 until the Court can review the law later this fall.

That 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 the relevant jurisprudence for the case, and while I didn’t have the chance to include all of it in my previous post, I think it’s worth revisiting.  Keep in mind, I’m not a lawyer, but I think the constitutional issues surrounding this case are important and interesting, and worth taking a look at. Please, please, if you read this, take the time to also read the court’s decision, look at the case law yourself, and look at other interpretations as we all try to puzzle out what this case actually means for reproductive rights.

As we all know, the initial standard for abortion restrictions in the United States comes from the landmark 1973 case Roe v Wade, wherein the court ruled that up until the point of viability the legislatures had no right to interfere with the medical decisions made between pregnant people and their doctors.  The Court recognized a broad constitutional right to privacy, which included the right to terminate a pregnancy free from interference.  The decision in Roe also drew a brightline at the end of the first trimester, stating that states had the right to regulate abortion “to the extent that the regulation reasonably relates to the preservation and protection of maternal health.” It’s that standard-~-that regulation relates to maternal health-~-that Texas is citing in defense of HB2, though it seems clear that the state should be forced to prove that there is a significant relationship between the standards they are trying to impose and patient outcomes if they are going to claim this as the basis for constitutionality.  On top of that, as acknowledged by the Fifth Circuit in their recent ruling, the Supreme Court’s decision in Roe v Wade only acknowledged maternal health as a compelling interest after the first trimester.

In addition to Roe, there are three cases I want to talk about in relation to Whole Women’s Health v Lakely, though, and they are as follows: Doe v Bolton, Akron v Akron Reproductive Health Center, Inc (Akron I), and Planned Parenthood of Southeast Pennsylvania v Casey.

I mention Doe v Bolton for a couple of reasons: first, because the Court ruled in this case that the requirements of the law in question were not “reasonably related to the purposes of the Act on which it is founded”; that is to say, if the regulations in question do not actually protect and promote maternal health, their application to abortion ought be considered unconstitutional.  The second reason I mention this case is this: the Court struck down the law in question because it applied to first-trimester abortions, and HB2’s medical abortion restrictions are specific to the first trimester, which is when medical abortion is utilized.

I suppose it’s worth mentioning that between the time at which Doe v Bolton was decided, and the time at which the Court heard Gonzales v Carhart or Planned Parenthood v Casey, the Court also affirmed Roe in Akron v Akron Center for Reproductive Healthcare (Akron I).  Though the part of the decision I’m about to cite from Akron I was partly reversed in Casey, I wanted to mention it because the Court had ruled that regulations could not interfere with the doctor-patient consultation process, and that states could “regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health” and does not “depart from accepted medical practice.”  So, again, we should be deferring to some standard of scientific proof in the application of these regulations, something which is dubious with regards to the specific regulations included in HB2 (especially, again, with regards to the regulation of medical abortion). The Court also found that the justifications provided for the standards examined in Akron I defied current medical knowledge that abortion could safely be performed in a physician’s office, and thus the standards were unconstitutional.  Why this standard is not being applied in Whole Women’s Health v Lakely, I’m not sure (but again, I’m not an appellate lawyer, and I could be missing something from the Casey decision).

In Planned Parenthood v Casey, however, the Court modified the existing jurisprudence, shifting away from the initial application of strict scrutiny to evaluate compelling state interest with regards to abortion restrictions.  The opinion in Casey stated that for regulations to be unconstitutional, they had to do more than just make it more difficult to access abortion; the standard put forth was that of an “undue burden” set by the legislature in order to access abortion services.  The Court subsequently defined an “undue burden” as a “substantial obstacle” to accessing this care.  The ruling has also been interpreted to mean that pre-viability regulations are constitutional if they do not create a substantial obstacle and they can be reasonably tied to the compelling state interest.

This is where our problem lies, as far as I can see: Texas is claiming that it has a compelling state interest to protect fetal life and maternal health, and as such is imposing regulations that actually have very little to do with either of those things; but in order to actually strike down the law, opponents are going to have to show that either 1) this compelling state interest does not exist-~-which the Fifth Circuit has already ruled it does, based on Justice Kennedy’s opinion in Gonzales v Carhart-~-or that 2) these measures do not actually further said state interest, or that 3) these regulations pose a substantial obstacle to accessing abortion care.  Even though Casey partially reversed the previous jurisprudence related to abortion regulation in the United States, I think it could be argued that parts of the decisions put forth in Doe v Bolton and Akron I, specifically with regards to deference to medical knowledge and standards, could be used to combat the regulations outlined in HB2.  This is because the Fifth Circuit’s opinion, with regards to Gonzales v Carhart, points out that the legislature may impose regulations in areas of medical uncertainty, which this may not qualify as.  If the legal standard is deference to the medical community, there may well be a solid legal challenge to the relevance and/or necessity of these standards, which might allow the more-balanced Supreme Court to strike down HB2.  On top of that, there may be a legal challenge regarding undue burden related to the total absence of open clinics in western Texas, since the Fifth Circuit has previously ruled it unconstitutional for a state to force its citizens to go to another state in order to access abortion services.

I don’t know if I’m right about my legal analysis here.  I’m not a lawyer, just someone fascinated by these parts of the law.  But I hope that opponents of HB2 are able to make a compelling and viable challenge to this law that will be reasonably considered by whichever body to which they next appeal, because Whole Women’s Health v Lakely could well become a dangerous legal precedent, limiting facial challenges to abortion restrictions and giving legislatures significant latitude in their quest to limit access to reproductive healthcare.  I’ve read the past cases, and all I (or anyone not a part of the legal team working to get this law struck down) can do is watch, and wait.


~ by Randi Saunders on July 8, 2015.

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