Texas Abortion Case Heading for Supreme Court

A 3-judge panel of the Fifth Circuit has upheld H.B. 2, Texas’s abortion law made famous by state senator Wendy Davis’s eleven-hour filibuster last summer.

Planned Parenthood and other abortion providers challenged parts of the law that would require doctors who perform abortions to have admitting privileges at a hospital within 30 miles and restrict the use of abortion-inducing drugs to FDA-approved uses. The state argued that both regulations further the health of women seeking abortions.

The case is now likely heading to the Supreme Court.

Since announcing a right to abortion in Roe v. Wade in 1973, the Supreme Court has defined the contours of that right in two subsequent cases. In Planned Parenthood of Southern Pennsylvania v. Casey, the Supreme Court determined that states may not impose an “undue burden” with the “purpose or effect of placing a substantial burden in the path of a woman seeking an abortion….” The Supreme Court clarified in Gonzalez v. Carhart that laws regulating abortion must pass rational basis review—the lowest standard of review—which requires that a particular regulation be rationally related to a legitimate state interest.

In upholding the admitting-privileges regulation, the Fifth Circuit panel concluded that the state’s interest in the continuity of a patient’s care and credentialing of abortion providers were legitimate interests. The trial judge ruled that this provision would force the only abortion providers for the Rio Grande Valley out of business. But the Fifth Circuit found that even if the regulation reduces the number of doctors who will perform abortions, thus requiring woman seeking an abortion to travel as far as 150 miles, it is not a substantial burden. In fact, in Casey, the Supreme Court upheld a stricter law that required women seeking abortions in 62 out of 67 counties in Pennsylvania to travel 150 miles to the nearest provider.

The Fifth Circuit also upheld the ban on off-label usage of abortion-inducing drugs. The FDA limits the use of certain drugs to 49 days’ gestation but some abortion providers will administer them beyond that period. Off-label use can lead to a variety of complications, and,in a handful of cases, even death. Planned Parenthood claimed such abortions (known as medication or chemical abortions) are a medical necessity for some women, but the court was not persuaded because those women remain free to have a medication abortion up until 49 days’ gestation or a surgical abortion thereafter.

Last year, the Supreme Court had agreed to hear a case out of Oklahoma that dealt with a similar ban of off-label usage, but the case was dismissed for procedural reasons. It seems the justices may seize the next opportunity to weigh in on this controversial issue. While the appeal of H.B. 2 was pending, the Fifth Circuit and Supreme Court allowed part of the law to go into effect. In a statement dissenting from that decision, Justice Stephen Breyer (joined by Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan), pointed out that the constitutionality of H.B. 2 is a “difficult question” and one that he believes the justices “will wish to consider irrespective of the Fifth Circuit’s ultimate decision.”

This decision comes on the heels of the oral argument for the challenges to the Obamacare contraceptives mandate, and the spotlight has been on the female justices.

But, as Mailee Smith of the pro-life Americans United for Life emphasizes, the Fifth Circuit decision—written by Judge Edith Jones and joined by two other female judges—shows that “women are not universally in lock-step” and can “see through the rhetoric of the abortion industry…and understand that commonsense abortion regulations aimed at protecting women’s health must be pursued and upheld.”