Linda Greenhouse – The New York Times

Despite a near-universal assumption that the Supreme Court will take up an abortion case in its new term, the general chatter hasn’t included much detail about the specific issue, the stakes or the prospects. This column is an effort to address those questions. The stakes couldn’t be higher, either for women who live in the growing number of states governed by anti-abortion politicians or for the court itself.

During the next few weeks, the justices will decide whether to hear an appeal filed last month by several Texas abortion clinics. The clinics are among those that will be forced to close under a law that the United States Court of Appeals for the Fifth Circuit upheld in a series of decisions culminating in June with Whole Woman’s Health v. Cole.

Before passage of the Texas law, H.B. 2, two years ago, there were more than 40 abortion clinics in 16 Texas cities. Unless the Supreme Court overturns the Fifth Circuit’s decision, there will be at most 10 clinics in a state with 5.4 million women of reproductive age. There will be clinics in Houston, Austin, San Antonio and Dallas-Fort Worth, along with one permitted by the Fifth Circuit to remain open in McAllen under a bizarre condition: The clinic and its one doctor may serve only those women who live in the surrounding four-county area. (Maybe the Fifth Circuit was afraid that women from all over Texas might otherwise flock to the impoverished and remote Rio Grande Valley for their abortions.) There will be no clinics at all in the 500 miles between San Antonio and the New Mexico border.

How do Texas and the appeals court justify such a result? H.B. 2 did not mandate the closing of abortion clinics in so many words. It didn’t have to. Rather, the requirements the law imposes on abortion providers, following a template conveniently provided by a leading anti-abortion think tank, Americans United for Life were intended to bring about that result. The law requires doctors who perform abortions to have admitting privileges at a hospital no farther than 30 miles away. It also requires abortion clinics to be retrofitted as mini-hospitals, a requirement that also applies to clinics that offer only medication abortion, which involves handing a patient two pills to swallow and telling her to go home. Rick Perry, the governor who signed H.B. 2 into law, declared several months earlier that his goal “is to make abortion at any stage a thing of the past.” Addressing an anti-abortion rally, the governor said: “The ideal world is one without abortion. Until then, we will continue to pass laws to ensure that they are rare as possible.”

Governor Perry, not for the first time in his political career, was off-message. The official reason for the new requirements is to protect women’s health — “to raise standards of care and ensure the health and safety of all abortion patients,” as the state told the Supreme Court in the brief it filed last week urging the Supreme Court not to hear the clinics’ appeal. Is Texas suffering from an abortion-related health problem? Not exactly. There were 360,059 abortions performed in Texas from 2009 through 2013 — that is, before H.B. 2 took effect — resulting in no deaths and a minuscule rate of complications requiring a hospital visit. (Nationwide, the major complication rate from first-trimester abortions by the method commonly used in Texas is 0.05 percent.)

The extremely low complication rate is a reason that doctors who limit their practice to abortion can’t get hospital admitting privileges. Many hospitals require doctors to admit a certain number of patients in order to maintain privileges. One Dallas clinic was forced to close in June after 36 years because its medical director, while initially offered admitting privileges, couldn’t meet the requirement to send 48 patients a year to the hospital. Even the more common 10-patient requirement is impossible for abortion providers to meet. (A complication rate of 0.05 percent translates to five complications per 10,000 procedures.)

Laws that single out abortion practice for restrictions that don’t apply to medical procedures of equivalent or greater risk are known as TRAP laws, for “targeted regulation of abortion providers.” There is no doubt that H.B. 2 is a TRAP law; Texas permits doctors practicing in ordinary medical offices to administer general anesthesia, which is not typically used in abortions, and to perform colonoscopies and liposuction, both of which have higher mortality rates than abortion. A friend-of-the-court brief filed by the American College of Obstetricians and Gynecologists, the American Medical Association, and other medical groups asserts that the H.B. 2 requirements “fail to enhance the quality or safety of abortion-related medical care and, in fact, impede women’s access to such care by imposing unjustified and medically unnecessary burdens on abortion providers.”

The medical organizations’ brief makes a telling point about the admitting-privileges requirement. The average Texas county is, currently, 111 miles from an abortion clinic. So a woman who experiences a complication after returning home would go to a nearby hospital for emergency care rather than to a distant hospital where the doctor who performed the abortion might have privileges.

None of these points appear to shake Texas from its “all for women’s health” mantra, but here’s one that should. The state claims in its Supreme Court brief that the absence of an abortion clinic in the entire western half of the state is of no concern because women in El Paso, where the two abortion clinics will have to close, can simply travel one mile across the state line to a clinic in nearby Santa Teresa, N. M. New Mexico, however, has not imposed any TRAP laws. It requires neither admitting privileges nor a hospital-like setting. So Texas’ interest in protecting the health of its abortion patients evidently stops at the state line even as it sends women seeking abortions in West Texas across that line

So far, I’ve talked only about policy and not about law, and it’s law that we assume the Supreme Court justices will consider. In June, just before the summer recess, the court ordered a stay of the Fifth Circuit decision, preserving the status quo until the justices decided whether to hear the appeal. If the court grants the case, the stay will last until the final decision. If the court turns the appeal down, the stay will dissolve and the clinics will close.

Granting the stay should have been automatic; of course keep things in place when the consequences of doing otherwise are so drastic. A stay requires the votes of five justices and, in fact, there were only five. Four justices noted their dissent: Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito Jr. Justices who don’t agree with an administrative order like a stay don’t always make their dissent public. It’s a choice, and these four justices chose to go on the record as being willing to let three-quarters of the abortion clinics in Texas shut down without a Supreme Court hearing.

That leaves, of course, the other five: Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, Elena Kagan and — you guessed it — Anthony M. Kennedy. Justice Kennedy is the only justice left from the majority in Planned Parenthood v. Casey, the 1992 decision that by a vote of 5 to 4 preserved the constitutional right to abortion. The Casey decision, which remains the law, subjected abortion regulations to a new “undue burden” test, defining undue burden as “a state regulation that has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”

That’s a definition both wordy and porous. In an article to be published in the Yale Law Journal titled “Casey and the Clinic Closings: When ‘Protecting Health’ Obstructs Choice,” my colleague Reva B. Siegel and I argue that under Casey, as properly understood and as informed by the court’s 2007 decision that upheld the Partial Birth Abortion Ban Act, the H.B. 2 requirements impose an undue burden and the Fifth Circuit was wrong to uphold them. (Five years ago, she and I published a book on the history of the abortion debate, available here as a free download from the Yale Law School library.)

In Casey, the court modified Roe v. Wade to empower the states to act throughout pregnancy — not just in later trimesters as in the earlier case — to protect both unborn life and maternal health. But the court limited the ways in which the state can do both those things, and it applied separate standards for each. To protect the unborn, the state can seek to dissuade a woman from having an abortion through such measures as a waiting period and mandatory counseling, both of which the Casey decision upheld. But at the end of the day, the state cannot prevent a woman from carrying out her decision to terminate a pregnancy; in the words of the opinion, the state can employ methods “calculated to inform the woman’s free choice, not hinder it.”

The court subjected health-related regulations to a separate analysis. “Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right,” the court said. Reva Siegel and I argue that this means that health-related regulation of abortion must be consistent with ordinary medical practice and must actually serve the asserted purpose: protecting a pregnant woman’s health. If it serves no demonstrable health-related purpose, then the regulation most likely represents an effort by the state to protect unborn life by means that Casey rules out — means that hinder rather than inform, prevent rather than persuade.

Courts around the country are looking skeptically at health-justified abortion regulations that don’t actually protect health. In upholding an injunction against a new admitting-privileges requirement in Wisconsin, Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit found the medical evidence “lacking.” He interpreted the undue-burden standard as requiring courts to weigh the purported justifications for a restriction against the burdens that the restriction would impose on access to abortion. “The feebler the medical grounds, the likelier the burden, even if slight, to be ‘undue’ in the sense of disproportionate or gratuitous,” Judge Posner wrote.

Applying a similar analysis, the United States Court of Appeals for the Ninth Circuit blocked Arizona’s restriction on medication abortion, with Judge William Fletcher writing: “Plaintiffs have introduced uncontroverted evidence that the Arizona law substantially burdens women’s access to abortion services, and Arizona has introduced no evidence that the law advances in any way its interest in women’s health.” (The Supreme Court turned down the state’s appeal.) And in June, the Iowa Supreme Court used similar reasoning to invalidate a rule imposed by the state’s Board of Medicine that required a doctor to be present when a patient received abortion-inducing medication.

Against this background, the Fifth Circuit’s decision in the Texas case, adopting a rule of nearly total deference to the state’s claims, stands out. “In our circuit, we do not balance the wisdom or effectiveness of a law against the burdens the law imposes,” Judge Jennifer Walker Elrod wrote for the circuit in a preliminary phase of the case. The appeals court rebuked Lee Yeakel, the federal district judge who had struck down H.B. 2, for even questioningthe validity of the state’s health justifications. Yet questioning and balancing is exactly what a court must do if it is to adhere to the bargain the Supreme Court struck in Casey: States can vindicate their interest in protecting unborn life through means that seek to inform and persuade, but not by destroying the infrastructure that makes it possible for women to exercise the constitutional right to abortion.

So is the future of the right to abortion once again — still — in the hands of Justice Kennedy? It’s nearly impossible to conclude otherwise. Given his vote for the stay, it’s all but certain that he will at least be willing to give the Texas abortion clinics a hearing. The right to abortion, as announced in Roe v. Wade and more or less preserved in Planned Parenthood v. Casey has its origins in Griswold v. Connecticut, the 1965 decision that established the constitutional right to use birth control. The most recent step on the constitutional journey that Griswold initiated 50 years ago came in June with the same-sex marriage decision, Obergefell v. Hodges. Preserving the right to abortion as defined in Casey keeps the court on the path of individual liberty and dignity that Justice Kennedy’s majority opinion in Obergefell celebrated. Permitting the state of Texas to have its way will take us backward.