790 F.3d 563, 136 S. Ct. 499 (2016)
FACTS: In 2013, the Texas Legislature passed House Bill 2, which contained several provisions pertaining to abortions. One of these provisions was the requirement that doctors who provide abortion services must obtain admitting privileges at a local hospital that provides obstetrical or gynecological health care services that is no farther than 30 miles away from the abortion clinic. Another of these provisions required that every health care facility offering abortion care must meet specifications to become ambulatory surgical centers under Texas El. Code Ann. § 241.010.
PROCEDURAL HISTORY: The litigation began in 2014, when petitioners brought action against Texas officials in the United States District Court for the Western District of Texas seeking declaratory and injunctive relief from Texas statutes and their implementing rules, regulating admitting privileges, and requiring abortion facilities to meet minimum state standards for ambulatory surgical centers. The petitioners also argued that House Bill 2 denied equal protection, unlawful delegation, and arbitrary and unreasonable state actions claims.
After a swift bench trial concluded in August of 2014, the District Court held that the ambulatory surgical center requirement imposed undue burden on the right of women throughout Texas to seek a previable abortion and the admitting-privileges requirement imposed undue burden on the right of women in the Rio Grande Valley, El Paso, and West Texas to seek a previable abortion. The court also ruled that the provisions together created undue burden on a woman seeking a previable abortion by restricting access to previously available legal facilities. Both the declaratory and injunctive reliefs were granted. However, the equal protection, unlawful delegation, and arbitrary and unreasonable state actions claims were denied. The court issued an injunction of the admitting privileges requirement as applied to all women seeking a previable abortion. Both parties appealed.
On appeal, the U.S. Court of Appeals for the Fifth Circuit affirmed the district court’s denial of the equal protection, unlawful delegation, and arbitrary and unreasonable state actions claims and reversed the district court’s ruling on the ambulatory surgical center requirement and the admitting privileges requirement, explaining that the district court had improperly invalidated this requirement as facially unconstitutional. The court explained that the petitioners had failed to establish their claim that the admitting privileges requirement was unconstitutional and was barred by res judicata – a doctrine that generally says a matter may not be relitigated, once it has been judged on the merits by a competent court. Additionally, the court vacated the district court’s injunction of the admitting privileges requirement as applied to all women seeking a previable abortion.
However, the court did rule that the statutes had the effect of placing substantial obstacles in the path of women seeking abortion as applied to the McAllen facility, but did not place substantial obstacles in the path of women seeking abortion as applied to the El Paso facility. Thus, they modified the injunction of the admitting privileges requirement issued by the district court and subjected the McAllen clinic to specific restrictions on this facility, including not enforcing certain parts of the ambulatory surgical center requirements as long as the doctor at this facility is providing an abortion to a woman residing in the Rio Grande Valley. This exception was explained to be valid until another licensed abortion facility becomes available at a location closer to the Rio Grande Valley to provide abortions.
On June 29, 2015, the United States Supreme Court stopped enforcement of House Bill 2 in Texas. The United States Supreme Court granted certiorari (has agreed to hear the case) on November 13, 2015. Currently, the ambulatory surgical center requirement remains blocked statewide, and the admitting privileges requirement remains blocked for clinics in McAllen and El Paso, until the United States Supreme Court takes further action.
ISSUE: Should a court’s “substantial” burden analysis take into account the extent to which laws that restrict access to abortion services actually serve the government’s stated interest in promoting health?
ORAL ARGUMENTS: Oral arguments for this case will occur on March 2, 2016.
DISCUSSION: The court’s interpretation of the “substantial” burden analysis from the 1992 United States Supreme Court decision in Casey v. Planned Parenthood will be particularly important in the upcoming oral arguments for Whole Women’s Health v. Cole. This analysis also played a large role in the opinions published by the lower courts in this case.
In Casey v. Planned Parenthood, the Court proclaimed that any regulation that imposes a “substantial obstacle” preventing a woman from obtaining a legal abortion is an “undue burden” that violates the woman’s constitutional right to an abortion. The case will hinge on whether or not the Court considers the admitting privileges requirement and the ambulatory surgical centers requirement to impose a “substantial obstacle” that prevents a woman from obtaining a legal abortion in Texas.
What petitioners are essentially arguing for in this case is a strict scrutiny standard of review for abortion regulations. In order to pass the strict-scrutiny standard of review, the legislature must have passed a law to further a “compelling governmental interest” and must have narrowly tailored the law to achieve this interest. However, the Supreme Court of the United States has repeatedly explicitly rejected the strict-scrutiny standard of review in abortion cases, instead affirming the states’ interests in protecting maternal health and regulating the medical profession through commonsense abortion regulations.
In Roe v. Wade, the court held that the state “has legitimate interest in protecting both the pregnant woman’s health and the potentiality of human life.” The decisions in Casey v. Planned Parenthood as well as Gonzalez v. Carhart reaffirmed this holding from Roe v. Wade. This holding could play a substantial part in the upcoming arguments in Whole Women’s Health v. Cole. However, it is important to note that there have been various decisions that have been decided in contradiction of this holding and have instead supported a strict-scrutiny standard, such as the United States Court of Appeals for the Seventh Circuit’s decision in Planned Parenthood v. Schimel.
The result of this case will be especially relevant for CWA due to the fact that the decision will set the course of the pro-life fight for years to come. CWA will be submitting an amicus brief in this case.