Fifth Circuit Upholds Texas Abortion Restrictions In Major Ruling With Supreme Court Potential

Edith-Jones-Judge-Edith-H-Jones-Edith-Hollan-JonesWhile predicting that a case will be accepted by the Supreme Court is a dubious form of fortune-telling (I just had a case denied review this week), the decision yesterday in the Fifth Circuit upholding the Texas law imposing restrictions on abortion clinics has the highest possible chances for such a review. It could also represent a major opportunity for those seeking to limit the pro-choice cases extending back to Roe v. Wade. The decision (written by Judge Edith Jones) is Planned Parenthood of Greater Texas v. Abbott, 2014 U.S. App. LEXIS 5696.

The case involves a state law imposing new obligations on clinics that reportedly resulted in the closure of 20 such clinics in the state. On July 12, 2013, H.B. 2 was enacted with two provisions challenged in this case. First, the law requires that a physician performing or inducing an abortion have admitting privileges at a hospital no more than thirty miles from the location where the abortion is provided. Second, the law requires that the administration of abortion-inducing drugs comply with the protocol authorized by the Food and Drug Administration (FDA), with limited exceptions.

Five other states have recently passed laws substantially laws but federal courts have largely enjoined the laws. Jackson Women’s Health Org. v. Currier, 940 F. Supp. 2d 416 (S.D. Miss. 2013) (admitting privileges); Planned Parenthood Se., Inc. v. Bentley, 951 F.Supp.2d 1280 (M.D. Ala. 2013) (admitting privileges); MBK Mgmt. Corp. v. Burdick, 954 F. Supp. 2d 900 (D. N.D. 2013) (admitting privileges); Planned Parenthood of Wis., Inc. v. Van Hollen, No. 13-CV-465- WMC, 2013 WL 3989238 (W.D. Wis. Aug. 2, 2013) (admitting privileges); Planned Parenthood Sw. Ohio Region v. DeWine, No. 1:04-CV-493; 2011 WL 9158009 (S.D. Ohio May 23, 2011) (medication abortion).

225px-stephen_breyer_scotus_photo_portraitIn this case, the Fifth Circuit had countermanded the district court’s decision to enjoin the law — a decision that has already made it to the Supreme Court. After U.S. District Judge Lee Yeakel ruled that the law was unconstitutional, the Fifth Circuit allowed enforcing just three days later. Four justices then issued a dissent from the decision of the Court to allow the enforcement of the law. Associate Justice Stephen Breyer stated “It is a question, I believe, that at least four members of this court will wish to consider irrespective of the Fifth Circuit’s ultimate decision.” He was joined by Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor.

The case therefore leaves the Fifth Circuit with enough justices already on record as expressing their likely opposition to the decision. That would, once again, leave Associate Justice Anthony Kennedy in the position of swing voter. The four liberal justices may want to reconsider whether this is the case to test Kennedy’s current views on the subject. I would expect that Kennedy would find the appellate decision compelling in some respects.

Take the residency requirements. To win, Planned Parenthood must prevail by showing that there is no rational basis for the requirement — the lowest burden for a state. That state submitted a detailed record on that rationale. There is clearly room to disagree with those assertions by the state experts. However, Judge Edith Jones stressed:

Nothing in the Supreme Court’s abortion jurisprudence deviates from the essential attributes of the rational basis test, which affirms a vital principle of democratic self-government. It is not the courts’ duty to second guess legislative factfinding, “improve” on, or “cleanse” the legislative process by allowing relitigation of the facts that led to the passage of a law. Heller v. Doe, 509 U.S. 312, 320 (1993) (providing that a state “has no obligation to produce evidence to sustain the rationality of a statutory classification”). Under rational basis review, courts must presume that the law in question is valid and sustain it so long as the law is rationally related to a legitimate state interest. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). As the Supreme Court has often stressed, the rational basis test seeks only to determine whether any conceivable rationale exists for an enactment. F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993) (citing cases). 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. Id. at 315 (holding that “a legislative choice is not subject to courtroom fact-finding”). Most legislation deals ultimately in probabilities, the estimation of the people’s representatives that a law will be beneficial to the community. Success often cannot be “proven” in advance. The court may not replace legislative
predictions or calculations of probabilities with its own, else it usurps the legislative power. Heller, 509 U.S. at 319 (stating that rational basis review “is not a license for courts to judge the wisdom, fairness, or logic of legislative choices”); Beach Commc’ns, 508 U.S. at 315 (explaining that judicial deference to legislative choice “preserve[s] to the legislative branch its rightful independence and its ability to function”). A law “based on rational speculation unsupported by evidence or empirical data” satisfies rational basis review. Beach Commc’ns, 508 U.S. at 315. The fact that reasonable minds can disagree on legislation, moreover, suffices to prove that the law has a rational basis. Finally, there is no least restrictive means component to rational basis review. Heller, 509 U.S. at 321 (holding that courts must accept a legislature’s generalizations under rational basis review “even when there is an imperfect fit between means and ends” or where the classification “is not made with mathematical nicety”).

This rule of restraint is particularly important in the realm of constitutional adjudication for a simple reason. If legislators’ predictions about a law fail to serve their purpose, the law can be changed. Once the courts have held a law unconstitutional, however, only a constitutional amendment, or the wisdom of a majority of justices overcoming the strong pull of stare decisis, will permit that or similar laws to again take effect.

Once again, there are ample arguments on the other side and Jones is a bit of a lightning rod for many moderate and liberal jurists. However, Kennedy may be inclined to see the case as an opportunity to draw some lines in favor of state authority with the finding of the court that the law “on its face does not impose an undue burden on the life and health of a woman.” The closure however of the clinics will counterbalance those arguments, making this a closer case.

Here is the opinion: Planned Parenthood v. Abbott

38 thoughts on “Fifth Circuit Upholds Texas Abortion Restrictions In Major Ruling With Supreme Court Potential”

  1. I can’t for the life of me figure out why abortion is such a hot topic. We have planned parenthood- where the man and woman can go get educated about planning to have a baby or not. If they didn’t get the benefit of attending a public school, they might not actually know that sex can result in a pregnancy. This is CRITICAL information to have when deciding on whether or not to engage in sex, as well as use some sort of protection. With all said and done, the man and woman may choose to bring a new life in to the world together, or wait. Right? Isn’t this the whole pretense of freedom? Choice? Who held the guns on these impoverished souls and forced them to procreate? Nobody. They were free to choose. I believe that abortion should also be a choice, yet I would not make it a regular occurrence. These regulations do not seem ridiculous. I believe abortion clinics should be heavily regulated to avoid more instances of people like Kermit Gosnell.

    “If the most common reason that people seek abortions is for financial reasons,” then by any reasonable assumption shouldn’t they go to planned parenthood and see if they can afford a child before engaging in a potentially pregnancy inducing act? Perhaps these people are not reasonable.

    This post was done by a man, with serious aims at discussion and a mild intent to inflame. 🙂

  2. And some will get their asses handed to them…. It just takes time….

  3. Kraaken, You said what I have said several times here and elsewhere, I think men to get their asses out of this debate. I think men mostly inflame it. That’s why I seldom comment on abortion threads.

  4. There’s a section missing. I can’t get some of it to post. (WordPress!)

    “And tellingly, this law only applies to doctors who provide abortion. It doesn’t apply to doctors who provide other types of outpatient procedures, even those that carry far greater risks than abortion. But the appeals court overlooked this evidence and overlooked evidence demonstrating the devastating effect this law has on Texas women.
    This isn’t just a problem for women and families in Texas. AUL and others like them are pushing these bills all over the country as part of a coordinated assault on women’s ability to make their own decisions about their health care. Similar laws have passed in Alabama, Wisconsin, North Dakota, and Mississippi, and the list is growing.

    At the ACLU we are fighting these laws in court. But the Texas decision shows that we can’t always count on judges to stop these laws. That is why it’s so important that we stop these laws before they pass. Our elected representatives must hear that we won’t sit idly by while they continue their attacks on women’s health. Stand with us.”

  5. Continuation of previous comment:

    ACLU posting by By Brigitte Amiri, ACLU Reproductive Freedom Project at 12:13pm

    “Today is one of the worst days in my professional career. I have been working to defend the rights of women and families to make their own private decisions about abortion for well over a decade. There have been wins and there have been losses. But no loss has been as profound as the one we got this week.

    Yesterday a federal appeals court upheld a Texas law that has left large parts of the state without an abortion provider. Women who already are struggling to pay rent and put food on the table for their families must now travel hundreds of miles to obtain abortion care. For many, the obstacles will be too burdensome to overcome.

    For example, one woman in the Rio Grande Valley who showed up to her appointment the day the law took effect was devastated to learn that she could not have an abortion in her area. She was happily married with several children, but she could not afford another. In tears, she said that she did not have enough money to travel north and had no choice but to carry the pregnancy to term. Other women have resorted to self-inducing abortion by getting pills from across the border in Mexico.


    “The new law requires abortion doctors to have admitting privileges at a nearby hospital and places strict limits on doctors prescribing abortion-inducing pills. More regulations that are scheduled to begin later this year weren’t part of the case.

    In its opinion, the appeals court said the law “on its face does not impose an undue burden on the life and health of a woman.”

    …In passing the rules, Texas lawmakers argued they were protecting the health of women. But abortion-rights supporters called the measures an attempt to effectively ban abortion through overregulation.

    Many abortion doctors do not have admitting privileges, and limiting when and where they may prescribe abortion-inducing pills discourages women from choosing that option, they argued.

    Other aspects of the new rules, including a requirement that all procedures take place in a surgical facility, are set to begin in September, though they may also be challenged in court.

    At least 19 clinics have shut down since the new law was approved and the 5th Circuit allowed the provisions on hospital-admitting privileges and abortion-inducing pills to take effect, leaving around 24 still open to serve a population of 26 million Texans. More closures could happen after the additional restrictions are in place.

    In reversing the lower court’s decision, the appeals panel said Thursday that the district court opinion erred in concluding the law “imposed an undue burden in a large fraction of the cases.”

    “The evidence presented to the district court demonstrates that if the admitting-privileges regulation burdens abortion access by diminishing the number of doctors who will perform abortions and requiring women to travel farther, the burden does not fall on the vast majority of Texas women seeking abortions,” the appeals court found.
    Andrea Grimes, who tweeted the Fifth Circuit panel ruling on #HB2, highlighted this passage regarding undue burden, and the supposed lack thereof:

    By law, abortion restrictions must not create an undue burden, which is why we are getting this tortured explanation of how driving 150 miles (each way, possibly multiple times) to get an abortion is not an “undue burden.”

    Which is manifest claptrap. According to this Guttmacher study (pdf), “Can’t afford a baby now” was cited by 73% of women who terminated pregnancies as a reason for seeking an abortion.
    In the qualitative sample, of women who stated that they could not afford to have a child now, the majority had children already. Financial difficulties included the absence of support from the father of either the current pregnancy or the woman’s other children, anticipating not being able to continue working or to find work while pregnant or caring for a newborn, not having the resources to support a child whose conception was not planned and lacking health insurance.
    And that study was done in 2004, several years before the beginning of the Great Recession.

    If the most common reason that people seek abortions is for financial reasons, then by any reasonable definition it is an undue burden to expect them to: 1. Have a reliable car; 2. Be able to afford a costly trip (or trips) in that car; 3. Have the ability to take off at least one full day of work, and possibly more, without losing that job; 4. Be able to afford childcare for children they already have, unless they want to bring their children with them and drag them through a gauntlet of screaming protestors; 5. Raise the funds to be able to do all of this, in addition to paying out-of-pocket for the abortion, in time to meet the deadline for a legal abortion at the nearest clinic.

    The entire goal of these restrictions is to create an undue burden.

    And I don’t believe for a moment that this panel of judges could not see through the thin veneer of “women’s health” plastered over these deliberately designed burdensome restrictions. They are not stupid; they are complicit.

    Next stop: Supreme Court.”

  7. J.T.” First, the law requires that a physician performing or inducing an abortion have admitting privileges at a hospital no more than thirty miles from the location where the abortion is provided. Second, the law requires that the administration of abortion-inducing drugs comply with the protocol authorized by the Food and Drug Administration (FDA), with limited exceptions.”

    First off, I have to say that I have always found it a bit unsettling for men to be deciding these issues that are so obviously women’s issues. However, that having been said, although I strongly support the right to choose, it seems to me that the two issues in the above are only common sense. If you yourself were having this procedure done, wouldn’t you want it done by someone who had privileges at a hospital in the event that the unexpected happened? Wouldn’t you want that hospital to be close and not a two hour drive? Wouldn’t you want to know that whatever drugs were used in the procedure were used in the manner consistent with their intended purpose? I think that these rules are simply common sense

  8. If there are complications, there is something called an ER at a nearby hospital.

    “Serious complications arising from aspiration abortions provided before 13 weeks are quite unusual. About 88% of the women who obtain abortions are less than 13 weeks pregnant.4 Of these women, 97% report no complications; 2.5% have minor complications that can be handled at the medical office or abortion facility; and less than 0.5% have more serious complications that require some additional surgical procedure and/or hospitalization.5

    Early medical abortions are limited to the first 9 weeks of pregnancy. Medical abortions have an excellent safety profile, with serious complications occurring in less than 0.5% of cases.6 Over the last five years, six women in North America have died as a result of toxic shock secondary to a rare bacterial infection of the uterus following medical abortion with mifepristone and misoprostol. This type of fatal infection has also been observed to occur following miscarriage, childbirth and surgical abortion, as well as other contexts unrelated to pregnancy. The Centers for Disease Control and Prevention’s (CDC) continuing investigations have found no causal link between the medications and these incidents of infection. Although the Food and Drug Administration (FDA) has issued an updated advisory for warning signs of infection following medical abortion, it has recommended that there be no changes in the current standards for provision of medical abortion.7,8”

    Yes this is a pro choice site. If their statistics are incorrect, feel free to correct them.

  9. I don’t envy hard working, honest, conscientious lawyers these days. They went through law school thinking that our country is a nation of laws, not men and that there would be some reasonable amount of consistency in the law. Silly them!

    With all the fancy talk of precedent, stare decisis, etc etc one would have thought that Roe V Wade would have some weight in this decision, since it goes directly to the heart of womens’ full right to health care in all its forms and therefor to full personhood. But NOOOOO!

    The courts in America are basically saying, “The law is whatever we say it is today. It could change back again tomorrow…or not.”

    Law in America is a farce. Nothing that comes from any court has any validity or legitimacy whatsoever anymore. It is anarchy in slow motion, and things seem to be speeding up.

    And just yesterday a clinic in Montana was firebombed and completely destroyed – and they have the perp. And what is he charged with? Terrorism? Nope. Criminal Mischief.

  10. The American Medical Association and American College of Surgeons recommend that “[p]hysicians performing office-based surgery must have admitting privileges at a nearby hospital, a transfer agreement with another physician who has admitting privileges at a nearby hospital, or maintain an emergency transfer agreement with a nearby hospital.” It’s hard to imagine that doctors can even get medical malpractice insurance covering medical procedures such as abortions if they don’t have hospital admitting procedures.

    A drug administered to a patient by a doctor must meet FDA requirements. That’s obvious. Why does this rule become unconstitutional because a doctor is performing an abortion?

    Recently there has been a litany of litigation over the type of drugs that can be used for lethal injections. So why do medical standards apply when executing capital murderers, but it’s okay to inject radiator fluid into abortion patients?

    The additional costs of complying with these legal safeguards will not make abortions more expensive to patients since Obamacare covers abortions. Yes, abortions will become more expensive, but not to the patient.

    And speaking of Obamacare, it’s okay to force citizens to switch doctors, but not okay for a state to require doctors to have hospital admitting privileges, and abortion drugs to meet FDA standards simply because an abortion is involved? Under that logic, if a woman is late getting to a Planned Parenthood clinic for an abortion, then she can drive 90 MPH through a school zone because the laws don’t apply when an abortion is involved.

  11. Americans are dying every day because they cannot afford healthcare. The majority of abortions are done because of lack of financial resources to get birth control or lack of finances to raise the child.

    More children born into poverty who will die because they cannot afford healthcare. They will live long enough to be slaves to the elite and provide tax money to the Oligarchs and then die off.

    enough already. We’ve had enough. Leave us be.

  12. Oh goody, maybe Texas can use some of those unused clinics and set up specialty clinics, keeping brain dead pregnant women incubating in high tech magnificence.

  13. Get the government outta people’s personal medical decisions….

  14. The Theocratic Oligarchy 100 years hence is going to be great. Marching to the Company Church prior to your shift start, guarantees harmony and productivity.

    1. Darren, from memory I believe the title is Adams et al, vs ALPA and the FAA. It deals with the act that raised the age limit for part 121 pilots to age 65. The objectionable parts of the act stipulated that any pilot who turned age 60 before the signing of the act would not be allowed to return to their jobs unless they gave up ALL seniority for purposes of pay, vacation, bidding and other rights. This made my leave of absence void since my union, Teamsters, and company agreed that I would still be on the seniority list, and could get my job back as a captain once the age limit was raised. It also made it impossible for those who were non-union or other unions, to come back. It also made it impossible for any pilot to return to their jobs because the pay cut involved would be so severe, it effectively made it impossible for us to come back. The contortions the FAA and judges made were ludicrous in the extreme to justify the provisions. They relied on NO record of Congress since there was NONE since it was passed by unanimous consent at 2am and no hearings at all.
      Leyden Air,a non-union carrier, told the FAA and Congress to go to hell, and put their over 60 pilots back on line.

      ALPA was so stupid that they forgot about Continental which had about 20 pilots over 60 who were working as check airmen, and thus required flight deck crew members. ALPA went to expedited arbitration with the demand that Continental FIRE these ALPA members because the company put these pilots back on line after the act passed. This has to be a first in labor union history in which a union demands a company fire some of its members. They lost and the arbitrator took a few minutes to give his judgment.

      Another fun part was the law stated that this law could not be used to sue ALPA or the FAA. Another fact is that the FAA had long had the practice of allowing foreign airlines to use over 60 pilots to fly in US airspace, and had granted waivers to many other airlines which used over 60 age pilots. Corse Air had gotten numerous waivers of this kind, and El AL had the distinction of having the first flight to the US of an over 60 pilot after ICAO raised the age limit two years before the US did the same.

      The effect of this legislation and ALPA made sure that they got rid of most of the Vietnam veterans. They all said to the vets, thanks for your service SUCKERS!

  15. I wonder if would be ethical to write a column on the decision that was refused review at the SCOTUS. It would be an interesting one to compare with the ones which were granted cert. One would have to be a true clairvoyant to find any rational basis test for the law that was challenged since there was no such record in Congress and the courts did not bother with any such search or basis. It seems that the courts basically said that if Congress does it, it must be right. I am one of the plaintiffs in the suit in the interest of disclosure. I would also like to thank Prof. Turley for his efforts to right a wrong done to older pilots, most of whom, like myself, are Vietnam era veterans and many combat vets, not myself.

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