SCOTUS:Texas’ HB2 Abortion Statute Unconstitutional

The Fifth Circuit, relying on Texas’ interest in “insur[ing] maximum safety” for abortive procedures upheld Texas House Bill 2 (HB2), which increased the regulations for abortion procedures and care. Whole Woman’s Health v. Cole, 790 F.3d 563 (5th Cir. June 2015) (citing Roe v. Wade, 410 U. S. 113, 150). HB2 required (1) abortion facilities to satisfy standards for ambulatory surgical centers (surgical-center requirement), and additionally demanded (2) staff doctors obtain admitting privileges at hospitals within a 30 mile radius of the clinic (admitting privileges requirement). See, Whole Woman’s Health. Consequently, almost half of the existing abortion clinics in Texas shut down, unable to meet the requirements of HB2, resulting in an estimated one million women having to travel over 300 miles for a legal abortion. Id.

Note that two decades ago, in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 878 (1992), a plurality of the U.S. Supreme Court, extending Roe V. Wade, held that a state cannot place an “undue burden” on a woman’s right to have an abortion; consequently, a provision of law is constitutionally invalid if the “purpose or effect” of the provision “is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Id.  At issue in Whole Woman’s Health v. Cole, is whether the two requirements of Texas’ HB2 violates the Constitution as interpreted in Casey.

Relying on Casey, the Fifth Circuit concluded in Whole Woman’s Health that the travel time for women seeking abortion, among other things, was not an “undue burden”.

However, on June 27, 2016 in a monumental 5-3 decision, the United States Supreme Court reversed the Fifth Circuit, holding that the admitting privileges requirement and the surgical-center requirement constitute undue burdens and are therefore unconstitutional. See, Whole Woman’s Health v. Hellerstedt, No. 15–274, 2016 WL 3461560, (U.S. June 27, 2016).

The Court observed:

Neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes. Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, Casey, supra, at 878 (plurality opinion), and each violates the Federal Constitution. Amdt. 14, §1.

Opponents of abortion rights argued that HB2 would have protected women’s safety. Family Research Council President Tony Perkins said in a statement that his organization “will continue our work to protect women and children from the predatory abortion industry.”

NPR correspondent Nina Totenberg, reporting from the Supreme Court, observed this decision will have consequences around the country as several states have laws (either in effect or currently blocked) with similar requirements to that of Texas. If those laws are found to be essentially the same as Texas’ law they will be thrown out by the courts.

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