After oral arguments in January, there was every reason to believe that the decision by the U.S. Court of Appeals for the Fifth Circuit on the constitutionality of two provisions of Texas’ anti-abortion omnibus law would be bad. The Fifth Circuit is perhaps the most conservative federal appeals court in the country, with a well-deserved reputation for delivering anti-equality, anti-woman decisions steeped in condescension masquerading as legal reasoning. Last November, the Fifth Circuit unilaterally lifted the stay of a lower court order that would have blocked the admitting privileges portion of the Texas law from taking effect while the legal challenges proceeded, in an opinion that was nothing more than a clear case of judicial bias against abortion rights.
But last week’s decision upholding the constitutionality of the challenged portions of HB 2 is in some ways even worse than expected. It doesn’t simply reinforce
legislation designed to cut off abortion access for those most in need—it also sets forth a practically unnavigable path for challenging future state restrictions on abortion access.
The thrust of the legal challenge to
the law’s admitting privileges requirement and medication abortion restrictions is that they create an “undue burden” on the right to choose an abortion. That standard, while ubiquitous in abortion rights litigation and commentary, feels pretty meaningless. The law defines an undue burden as one that “has the purpose or effect of creating a substantial obstacle” to a woman’s right to choose. With that language, it’s hard to imagine how a law like HB 2, passed specifically to close abortion clinics and restrict as narrowly as possible abortion rights access, could survive.
But as I’ve explained here, thanks to a federal judiciary largely hostile to abortion rights, this mushy “undue burden” standard has been made even less effective at finding a limit to state actions regulating abortion access. That’s because, as the Fifth Circuit laid out in its opinion last week, all states need to do to have a court uphold their abortion restriction is to just claim the proposed restriction is rationally related to its stated purpose. As far as the Fifth Circuit is concerned, anti-choice
lawmakers do not even have to support those claims with evidence.
Sex. Abortion. Parenthood. Power.
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In the case of hospital admitting requirements, anti-choice advocates and lawmakers claim admitting privileges requirements and other targeted regulation of abortion provider (TRAP) laws are necessary to foster “maternal health” by closing “bad” clinics and thereby “protecting” patients. In response, those challenging the anti-choice arguments present
mountains of evidence showing there’s nothing rational about the state’s claim that it is fostering maternal health by advancing regulations the medical community has largely condemned as dangerous to women’s lives. But thanks to the Fifth Circuit, none of that matters.
As explained in the opinion authored by Judge Edith Jones, when analyzing the constitutionality of an abortion restriction, courts must presume the law in question is valid and vote to uphold that law so long as “any conceivable rationale” exists for the law’s enactment. Furthermore, the Fifth Circuit explained, the state doesn’t even really have to support with evidence its claim that law will advance the lawmaker’s stated outcome—in this case advancing maternal health. So long as lawmakers claim some basis in advancing maternal health, the Fifth Circuit believes that is, and will always be, enough to find an abortion regulation constitutional. “Because the determination does not lend itself to an evidentiary inquiry in court, the state is not required to ‘prove’ that the objective of the law would be fulfilled,” the court wrote, adding that “a law based on rational speculation unsupported by evidence or empirical data satisfies this standard of review.”
As far as the Fifth Circuit is concerned, when states like Texas pass laws restricting abortion rights in the name of maternal health, they have no obligation to prove, with evidence, that those restrictions will actually advance maternal health. Even if the empirical evidence fails to support the stated goal, the Fifth Circuit said, the abortion restriction should stand unless those challenging it can show that the restriction will amount restrict access for a “large portion” of the women it affects.
But if the state is under no obligation to support its claims with empirical evidence, those challenging abortion restrictions face an evidentiary hurdle that is practically impossible to clear.
In this case, the Fifth Circuit said challengers failed to show that the admitting privileges requirement amounts to an undue burden for a “large fraction” of the women it affects. “Although some clinics may be required to shut their doors, there is no showing whatsoever that any woman will lack reasonable access to a clinic within Texas,” said the court.
If it wasn’t clear that the deck was stacked against those challenging abortion restrictions, it should be now. Consider this twisted logic: The Fifth Circuit concludes that there’s a rational basis for the geographic requirement that hospital admitting privileges be within 30 miles of where a physician performs abortions, based on speculation by the state, supported by the testimony of one physician who does not perform abortions or work
at a facility that performs abortions, that it will facilitate patient care. But according to the Fifth Circuit, even though the effect of the law will be to close clinics and force some patients to drive hundreds of miles to access care, 300 miles is not too far to drive for a woman needing care, and therefore the effect of the law is not a substantial obstacle on her right to choose an abortion. “The evidence presented to the district court demonstrates that if the admitting-privileges regulations burdens abortion access by diminishing the number of doctors who will perform abortions and requiring women to travel farther,” the court wrote. “The burden does not fall on the vast majority of Texas women seeking abortions.”
So where does that leave us? Well, there’s always the chance for an appeal to the U.S. Supreme Court, where at least four justices have indicated their concerns with the Texas law’s requirements. But a fifth and crucial vote, Justice Anthony Kennedy, has never voted to strike an abortion restriction in his entire time on the court. That means there’s probably more Supreme Court justice votes to uphold the Fifth Circuit decision than to overrule it, which could hand anti-choice forces an important victory in the name of rolling back abortion access under the guise of incremental restrictions.
That leaves individual challenges to the law, brought by patients who tried to access abortion care and were denied as a result of HB 2 as the alternative path for legal recourse here. From the Fifth Circuit’s point of view, those are the viable challenges to the law here—women who were forced to carry to term a pregnancy they did not want to, no matter the cost. Those women must bear the burden of coming forward, with evidence of completing a pregnancy they did not want, which
may or may not have resulted in a live birth, and plead to the court to offer them some relief. Only then, after those women have born the costs and burdens associated with forced birth, the Fifth Circuit suggests, and only after those women bear the additional costs and expense of challenging the law in the wake of those first burdens, will there be enough evidence of the harm of HB 2 to potentially satisfy the question of whether the law unduly burdens a right to choose an abortion. After all, no claim is a guaranteed success.
If the federal courts are going to create a legal architecture where the only way to successfully challenge state anti-abortion regulations is by showing actual, individual harm done to women, then we’ll have to ask the horrific question: How many bodies will be enough for courts like the Fifth Circuit? If 300 to 400 miles is not a burden to abortion access, how many harmed women and lives lost will be enough for the court? These are not hypothetical questions any more, nor are they hysterical over-reactions to one bad decision. They reflect the reality that now more than ever abortion rights under Roe are more of a promise than a truth.