Texas’ H.B. 2 contained 2 provisions (admitting privileges requirement and surgical center requirement) that restricted abortion access in the name of promoting women’s health. A group of abortion providers sought to invalidate these provisions for inhibiting a woman’s constitutional right to seek an abortion.
Regulations that require abortion clinics to have admitting privileges at a nearby hospital and requiring abortion clinics to have facilities comparable to surgical centers place a substantial obstacle in the path of women seeking an abortion, constituting an undue burden on abortion access, therefore violating the U.S. Constitution.
In 2013, the Texas Legislature passed House Bill 2 (H.B. 2), which contained several provisions related to abortions. One provision required that any physician performing an abortion have admitting privileges at a hospital within 30 miles of where the abortion was performed, and another provision required that all abortion clinics comply with standards for surgical centers. In the time since the admitting privileges requirement took effect, the number of abortion clinics in Texas declined from 42 to 19. Plaintiffs argued that H.B. 2 was unnecessary and expensive, as well as an attempt to limit abortion access rather than increase women’s safety.
Do the abortion restrictions contained in Texas’ H.B. 2 violate the U.S. Constitution as interpreted in Casey?
Yes, the abortion restrictions at issue are unconstitutional for violating woman’s right to an abortion.
The majority has reimagined the undue burden standard for abortion access, creating a benefits-and-burdens balancing test. The Court should have deferred to the legislature to resolve the issues presented in this case.
There is no direct causal link between the Texas law and the closings of abortion clinics, and they may have also been affected by the withdrawal of state funds, declining demand for abortions, and retirements of abortion doctors.
When a state severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners which poses a great risk to their health and safety.
The abortion restrictions at issue do not offer medical benefits sufficient to justify the burdens upon abortion access that each imposes. The admitting privileges requirement does not increase women’s safety because abortion in Texas is extremely safe with particularly low rates of serious complications and birtually no deaths. Similarly, the surgical center requirement provides no benefit when complications arise in the context of an abortion because such complications would almost always arise only after the patient has left the facility. At the same time, the record provides that each of these requirements places a substantial obstacle in the path of women seeking an abortion, especially given the fact that so many abortion facilities were forced to close because of these requirements. Each restriction places a substantial obstacle in the path of women seeking a pre-viability abortion, each constitutes an undue burden on abortion access, and each violates the federal Constitution.