The petitioner challenged the State of Texas’ House Bill 2 that requires physicians performing an abortion to have active admitting privileges and that the minimum standards for an abortion facility be equivalent to the minimum standards adopted under the Texas Health and Safety Code.
The Court will consider burdens a law imposes on abortion access and if they outweigh the benefits, they may be deemed unconstitutional.
The first provision of Texas’ House Bill 2, also called the “admitting-privileges requirement” says that a physician performing or inducing an abortion must, on the date abortion is performed or induced, have active admitting privileges at a hospital that is located not further than 30 miles from the location at which the abortion is performed. The second 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 statute.
Does the two provisions of Texas’ House Bill 2 violate the Constitution?
Yes, because the record shows that the two provisions do not benefit patients and are not necessary. They impose requirements that simply are not based on differences between abortion and other surgical procedures that are reasonably related to preserving women’s health, the asserted purpose of the Act in which it is found. Thus, the two provisions are unconstitutional.
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.
The Texas law inevitably will reduce the number of clinics and doctors allowed to provide abortion services. Complications from an abortion are both rare and rarely dangerous. Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory-surgical-center or hospital admitting-privileges requirements. The law does not protect the health of women, and it is certain that the law would simply make it more difficult for them to obtain abortions.
The record contains sufficient evidence that the admitting-privileges requirement led to the closure of half of Texas’ clinics, or thereabouts. Those closures meant fewer doctors, longer waiting times, and increased crowding. Record evidence also supports the finding that after the admitting-privileges provision went into effect, the number of women of reproductive age living in a country more than 150 miles from a provider increased from 86,000 to 400,000. The increases are burden, when taken together with others that the closings brought about, and when viewed in light of the virtual absence of any health benefit, show that the record supports the undue burden. Moreover, the record provides adequate evidentiary support that the surgical-center requirement places a substantial obstacle in the path of women seeking an abortion. In the face of no threat to women’s health, Texas sought to force women to travel long distances to get abortions in crammed-to-capacity superfacilities. Patients seeking these services are less likely to get support that doctors at less taxes facilities may have offered.