Gruwel Reproductive Health Center retained our consulting firm to ascertain the ongoing litigation in response to the abortion regulations passed by the Texas legislature and signed into law by then Governor Rick Perry in 2013.
Upfront prediction: Although it is impossible to determine in which way the Supreme Court of the United States (SCOTUS) will rule, especially in light of the vacancy of one of the nine seats due to the untimely death of the influential Justice Scalia, we believe the Texas amendments will be struck down by a 5-3 vote with Justice Kennedy joining with the four liberal judges.
Further below, I will address other options that are not as likely including the case being remanded back to the district level for “evidence” which could leave the stay in place while it works its way back to a nine seat SCOTUS. Another, albeit unlikely event, is that the court rules 4-4 “per curiam” which would allow the law to stand, but not set precedent. Per curiam is a term used when there is a tie in the SCOTUS due to a justice’s absence or recusal from a case. The least likely scenario is one of the liberals switching sides along with the moderate Justice Kennedy joining with the conservatives to uphold the law. Another variable will depend on the current nomination for SCOTUS being confirmed amid the election season in which we could see a shifting of the parties in the White House and a more conservative member nominated.
Essential Background Information: The law is known as House Bill (HB) 2 and titled the Texas Omnibus Abortion Bill. HB 2 amends Texas’ Health and Safety Code at §2, subchapter A, chapter 171 which regulates abortions to add the provisions as paraphrased:
1. Physicians must have active admitting privileges at a hospital within 30 miles of the clinic which provides OB/GYN services
2. Physicians provide a 24 telephone number to the patient which reaches a clinical staff member for any complications that may arise from the procedure as well as the contact information (name and telephone number) to the nearest hospital to the home address of the patient. a. HB 2 stipulates violation of these provisions just stated as a Class A misdemeanor punishable by a fine of no more than $4,000.
Further additions to the Health and Safety Code add under the title “Preborn Pain Act” include:
3. A ban on abortions at 20 weeks’ post-fertilization or later a. unless the life of the woman is issue, substantial (and irreversible) non-psychological harm (to prevent using diagnoses that self-harm could take place) to the woman would occur, OR b. the unborn child is known to have a severe fetal abnormality as defined by § 285.202 which is defined as “a life threatening physical condition that, in reasonable medical judgment, regardless of the provision of life saving medical treatment, is incompatible with life outside the womb.”
4. In the event that it is medically necessary to perform an abortion after 20 weeks, the physician must choose a method of abortion which gives the unborn child the greatest chance of survival should the abortion be unsuccessful except in the cases of the life or health of the woman defined above and the severe fetal abnormality as defined in § 285.202. a. Prohibits any cause of action against a woman who receives an abortion regardless of legality. But, b. under the “Preborn Pain Act”, the doctor may have administrative penalties by the Texas Medical Board including suspension or forfeiture of medical license and/ or a $5,000 fine for each day of non-compliance.
5. The amendment also mandates protection of the identity of a woman receiving an abortion who through these amendments were named as a victim or witness unless a court through hearings determine that no alternative exists in and it is essential to the administration of justice.
Final amendments pertain to abortion-inducing drugs under HB 2:
6. All abortion inducing drugs must be prescribed by a physician and a. must be in accordance with FDA guidelines outlined in the final printed label authorized for the drug and b. only in the amounts prescribed by the clinical management guidelines by the American Congress of Obstetricians and Gynecologists Practice Bulletin as they were published January 1st, 2013.
7. A physician must physically examine the patient and document in her medical records the gestational age and intrauterine location of the fetus.
8. The physician must provide to the patient a copy of the FDA approved final printed label and the same telephone information stipulated earlier in these amendments.
9. The physician must schedule a 14 day follow-up appointment and document all reasonable attempts to ensure the patient attends the follow-up.
10. At the follow-up, the physician must confirm the termination was completed and assess the degree of any bleeding. Any complications as defined under the MedWatch Reporting System that arises must be reported to the FDA through the MedWatch Reporting System. a. Violations can result in the doctor receiving administrative penalties by the Texas Medical Board to include suspension or forfeiture of medical license and/ or a $5,000 fine for each day of non-compliance.
Not to be outdone, the Senate also added an additional restriction in their version of HB 2 which was HB 5 and later renamed by the Governor in special session as HB 2:
1. All abortion clinics must be equivalent to the minimum standards of an ambulatory surgical center.
Litigation Challenging the Amendments since Enactment. Two notable cases have arisen since these amendments were passed; Planned Parenthood v. Abbott and Whole Woman’s Health v. Hellerstedt.
In Planned Parenthood, the plaintiffs asked the federal court to immediately block the most concerning aspects of the amendments; the restrictions placed on abortion through medication and the requirement for physicians performing abortions to obtain admitting privileges at a local hospital (many of whom were denied based on a hospitals religious affiliations or lack of income generating potential since it is rare for a patient to require hospitalization due to abortion). Although relief was granted by the federal district judge, the Fifth Circuit Court of Appeals reversed the lower court and upheld the provisions. The SCOTUS refused to hear the case which allowed the law to proceed.
However, another lawsuit was filed by Whole Woman’s Health, a private provider of abortion in several states including Texas. In this case, while proceeding through the courts (currently at the Supreme Court), the SCOTUS by a 5-4 decision issued a stay preventing the enforcement of mandatory upgrades of abortion clinics to ambulatory surgical center standards and blocked the physician hospital admitting requirements in clinics operating in McAllen and El Paso, Texas until decided.
Precedent: Two notable cases shaped abortion law in the United States over the past forty plus years. The most known case which legalized abortion as a fundamental right is the well known Roe v. Wade. While that case legalized abortion by judicial fiat, the lesser know Planned Parenthood v. Casey allowed states to place certain restrictions on abortion.
Roe v. Wade: The court held in Roe v. Wade and its sister case, Doe v. Bolton, that a woman has a right to choose whether or not to terminate a pregnancy until fetal viability. In Roe, the court held that the Due Process Clause of the 14th Amendment protected a woman’s right to privacy but did hold that as the pregnancy matured, the state’s vested interest increased. These interests include the health of the woman and the potential viability of the fetus.
Therefore, in the first trimester, states could do little to restrict an abortion. In this trimester, it was strictly the choice of the woman. In the second trimester, states could place regulation on abortion if their interests were in the health of the mother; that is, they could regulate procedure, but not outlaw abortion. The SCOTUS arbitrarily declared the fetus as not viable during these first two trimesters. In the third trimester, states could outlaw abortion when a fetus is known to be viable outside of the wound except in a case of a woman’s health being in jeopardy.
Planned Parenthood v. Casey: In the last two years of the 1980s, Pennsylvania enacted a series of provisions prior to a woman being allowed to have an abortion. These provisions included a 24 hour waiting period as well as some consent requirements. One consent requirement mandated minors seeking an abortion to inform at least one parent unless a judge declares otherwise. The other requirement was notifying a marital spouse her intent to have an abortion except in certain circumstances. Although a district court declared all restrictions unconstitutional, the court of appeals reversed the district court on all restrictions except the husband notification. This decision was appealed the SCOTUS.
The SCOTUS in 1992 reaffirmed Roe stating the need to preserve the institutional integrity of the judicial branch by affirming and reaffirming prior decisions made by the same court; this is referred to as stare decisis (Latin for “to stand by things [already] decided) also known as precedent. The SCOTUS reaffirmed the right of a woman to have an abortion before viability of the fetus without interference nor substantial obstacles emplaced by the state unless the states interests are strong enough to support a particular prohibition.
The SCOTUS confirmed the states power to restrict abortions after fetal viability so long as their exceptions for the woman’s health as the state does have a legitimate interest from the outset of the pregnancy in protecting a woman’s health and the life of a fetus after viability. This, the SCOTUS affirms is a liberty protected by the Due Process Clause of the 14th Amendment and the protections afforded to the citizenry against unwarranted governmental intrusion into their private lives.
The result of this decision by the SCOTUS was that the states could enact these restrictions except the spousal notification with the dividing line being whether or not a restriction places an “undue burden” on the right to have an abortion prior to fetal viability.
The open question: What constitutes an “undue burden”? As often happens in a SCOTUS decision, a new term or line is drawn, but the SCOTUS fails to adequately define that line or what that term entails. This is what happened in Casey with the “undue burden” standard. Although the undue burden standard has applied to earlier cases pertaining to different rights, this is the first time it was used in the relatively newly established right to abortion. The only definition mention to the undue burden standard in this case was by Justice John Paul Stevens in his partial concurrence/ partial dissent when he stated an undue burden is if either too severe or lacks a legitimate and rational justification.
Oral arguments in current Whole Woman’s Health v. Hellerstedt: With the undue burden standard inadequately defined, this gave rise to the current case concerning the Pennsylvania restrictions outlined in this memorandum. On March 2nd, 2016, oral arguments took place before the SCOTUS. As was expected, the four liberal justices on the SCOTUS drilled the attorney (the state’s solicitor general) representing Texas and the three remaining conservative justices directed their questions to the attorneys representing Whole Woman’s Health including the Solicitor General of the United States who helped advocate for them.
Arguments by the State of Texas focused on the health and safety of women as the focus of the law. By laying these claims, they could feel they can stay on the side of the Casey decision while restricting abortion. The conservative justices largely seemed to agree as Justice Alito pointed out that some of the Whole Woman’s Health facilities have been cited for major health violations such as holes in the floors where rats could enter. He also notes that the restrictions are very little to do with abortion itself, rather safety measures such as entrances at grade level, elevators to upper floors, and hallways large enough for a stretcher if needed.
Whole Woman’s Health argued that these are tactics only to place such restrictions on abortion, that abortion would be severely limited. These types of laws are what abortion supporters refer to as “Targeted Regulation of Abortion Providers” or “TRAP” laws.
For this, they had some anecdotal evidence. Since enactment, over a dozen clinics were forced to close. The Conservative Chief Justice noted that the clinics closed prior to the law taking effect with the liberal Justice Elena Kagan finding it odd that when notified the clinics would incur the costs of transforming to a surgical center they closed, but when the stay was put in place, they reopened. The liberal justices also repeatedly made it a point that some women would have to travel 200 miles or more twice just to receive an abortive medication found elsewhere over the counter.
Finally, the lone moderate and swing justice, Justice Anthony Kennedy suggested that they remand the case back to the lower court for more information. This would serve a vital purpose. By time the case winds its way back to the SCOTUS, there will be a ninth judge to affirmatively rule on the matter with precedent avoiding a 4-4 per curiam decision without precedent. If this were to happen, although not certain, it would likely result in a stay remaining in place blocking the enforcement of the law.
It is our opinion that the most likely scenario is that the SCOTUS will vote 5-3 to reverse the amendments to the Texas law as an undue burden in violation of Roe and Casey. We predict that the oft unpredictable and swing voter on the SCOTUS, Justice Kennedy will side with the four liberals on the SCOTUS.
The second most likely scenario is that the case will be remanded back to the lower courts for more evidence on whether the remaining clinics can serve the abortion needs adequately. In this scenario, the stay would more than likely remain in place. The third most likely scenario would be the SCOTUS voting 4-4 on the case which would allow the law to take place until reheard with a full court. This per curiam decision, as noted above, is not precedent setting and would only affect the jurisdiction of the Fifth Circuit Court of Appeals (which includes Louisiana and its new law). This would entail the swing voter on the SCOTUS voting with the conservative block. The least likely is a scenario where a liberal justice AND Justice Kennedy join with the conservatives and uphold the law.
It is our view that there is a greater than 90% probability that the abortion clinics in Texas will remain open for the foreseeable future. Even if a Republican were to win office and nominate a conservative to replace the late Justice Scalia’s seat, there is still more than a 50% chance the amendments to the Texas law would be largely struck down. It was Justice Kennedy after all that authored the compromise “undue burden” in the 5-4 Casey decision in the 1990’s.