Texas’s House Bill 2 has two provisions that are in dispute to violate the Constitution as interpreted in Casey. The District Court determined that the provisions place an undue burden on the right of women throughout Texas to seek a previability abortion by restricting access to previously available legal facilities. The Court is trying to determine whether the two provisions violate the Constitution as interpreted in Planned Parenthood v. Casey.
A statute that furthers a valid state interest but has the effect of placing a substantial obstacle in the path of a women’s choice cannot be considered a permissible means of serving its legitimate ends.
Unnecessary health regulations that have the purpose of effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.
Texas’s House Bill 2 has two provisions. The first provision called “admitting-privileges requirement” says that a physician performing or or inducing an abortion must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that is located not further than 30 miles from the location where the abortion is performed or induced. Another provision called “surgical-center requirement” says that the minimum standards for an abortion facility must be equivalent to the minimum standards adopted under the Texas Health and Safety Code. The Court is trying to determine whether the two provisions violate the Constitution as interpreted in Planned Parenthood v. Casey.
Do two provisions of Texas’ House Bill 2 violate the Constitution as interpreted in Planned Parenthood v. Casey?
Yes. Casey dictates that there exists an “undue burden” on a woman’s right to decide to have an abortion, and consequently a provision is constitutionally invalid, if the “purpose and effect” of the provision is “to place a substantial obstacle in the path of a woman seeking an abortion…” Neither of the provisions here confers medical benefits sufficient to justify the burdens upon access that each imposes. Each provision places a substantial burden on women seeking an abortion and therefore each violates the Constitution.
The majority radically rewrites the undue burden test. The majority’s decision requires courts to “consider the burdens a law imposes on abortion access together with the benefits those laws confer.” The decision also tells courts that when the law’s justifications are medically uncertain, they need not defer to the legislature. These precepts are nowhere to be found in Casey or any precedents and transform the undue-burden test to a more strict scrutiny test.
Complications from an abortion are both rare and rarely dangerous. Many medical procedures, such as childbirth, are far more dangerous to patients, yet are not subject to ambulatory-surgical center or hospital-admitting-privileges requirement. It is hard to see that the two provisions could genuinely protect the health of women.
The purpose of the admitting-privileges requirement is to help ensure that women have easy access to a hospital. However, the evidence presented by the lower court shows that the admitting-privileges requirement led to the closure of half of Texas’ clinics, which meant fewer doctors, longer waiting times, and increased crowding. Moreover, while the second provision that requires all abortion facilities to meet all surgical-center standards, there is considerable evidence that women will not obtain better care or more positive outcomes at the surgical centers as compared to a previously licensed facility. The two provisions, while meant to provide easy, better access of healthcare to women seeking an abortion, have vastly increased the obstacles. Thus, they are unconstitutional on their face.