The Texas abortion restrictions that passed last week could close most of the clinics in the state and send women across the border to Mexico for pills that induce miscarriage in the first trimester. It’s also the big new abortion law with the best chance of landing before the Supreme Court.
I don’t say that lightly. Many of the scores of restrictions the states have passed since the 2010 elections (when Republicans took over a whole bunch of statehouses) will meet their end in the lower courts. Unless and until Roe is overturned, they are clearly unconstitutional, and most judges will say so and strike them down. Other laws so far have gone unchallenged, either because they don’t affect many women seeking abortions (this is true for 20-week bans in states where doctors haven’t been doing, or at least say they don’t do, late-term procedures anyway) or just haven’t gotten attention from pro-choice lawyers yet. But the Texas bill is too big to ignore. It threatens to take away access to abortion—in the first trimester as well as later—from tens of thousands of women. Abortion rights advocates have to challenge it in court. And when they do, the case will wind up in front of the U.S. Court of Appeals for the 5th Circuit. That is a court with judges who have clearly signaled their interest in upholding abortion restrictions if they possibly can. The 5th Circuit’s eventual ruling could well conflict with the decision of other appeals courts—creating the kind of split that the Supreme Court is supposed to resolve.
The Texas abortion bill imposes four sets of restrictions. It bans abortion after 20 weeks of pregnancy (making Texas the 12th state with a 20- or 18-week ban, according to the Guttmacher Institute). It requires clinics to meet the same standards as ambulatory surgery centers, a favorite kind of TRAP law. (TRAP stands for targeted regulations of abortion providers.) This provision compels clinics to come up with the money to widen hallways so patients can be carried out on stretchers, and provide large and expensively equipped recovery rooms. In other words, it costs a lot of money to comply with, which is why some clinics say they will have to shut their doors, which is why it’s a popular way to fight abortion these days.
Another TRAP provision: a requirement that abortion providers must have admitting privileges at a local hospital—if no hospital will grant them, then no abortions (never mind that hospitals have to take patients in an emergency no matter what). And the fourth part of the law requires doctors to be in the room when women take the pills that induce abortions, rather than conferencing by phone or video while a nurse or physician’s assistant oversees patients’ care.
In other words, Texas has taken all the blossoming legal ideas of the anti-abortion movement and rolled them up into one big bouquet. This fits with the state’s history. As Mimi Swartz pointed out in an excellent 2012 piece for the Texas Monthly, “ferocious GOP primary wars” have turned the abortion debate into “a contest over who can move furthest to the right.” The ratcheting up of restrictions started in 1999, when legislators passed a parental notification law for minors. How quaint that now seems. The state also compelled doctors to give patients information about fetal health and development (including bogus claims that abortion is linked to problems in later pregnancies and higher rates of breast cancer). Next, the state compelled family planning facilities to split into two parts: one for birth control, checkups, and cancer screenings, and the other for abortions exclusively. (All the better for targeting the clinics with onerous regulations now.) The 5th Circuit upheld the division of services in 2005.
Texas wasn’t done. It stripped family planning aid from poor women and refused to accept $30 million in Medicaid for those same women. (All this in a state “where half of all pregnancies were unplanned in 2011, and 1 in 3 women of childbearing age lacks health insurance,” Jaeah Lee writes in Mother Jones.) Then in 2011, the state passed an ultrasound mandate, saying that women must undergo sonograms before abortions to “strengthen informed consent.” The law requires doctors to display the ultrasound image, describe the image of the fetus, and play the fetal heartbeat aloud. In the first trimester, this almost always requires a transvaginal ultrasound—the kind that Virginia legislators ran from in embarrassment after they turned into late-night comedy laughing stocks. The Texas law was already on the books by then, so the Saturday Night Live derision didn’t matter.
But a district court temporarily struck down the Texas ultrasound mandate. And this is—significantly—where the 5th Circuit comes back in. The appeals court rejected all the arguments against the law, one by one, in an opinion by Judge Edith Jones. The ultrasound mandate is merely “part of the state's reasonable regulation of medical practice,” Jones wrote. She didn’t see the law as invasive for patients or as interfering too far into the doctor-patient relationship. As Jones framed it, the law was simply about strengthening informed consent. “The point of informed consent laws is to allow the patient to evaluate her condition and render her best decision under difficult circumstances,” Jones wrote. “Denying her up to date medical information is more of an abuse to her ability to decide than providing the information.”
It sounds so reasonable, doesn’t it? And that’s the point of this breed of abortion restrictions—they purport to be all about protecting women’s health, which gives anti-abortion judges a rationale for upholding them. Jones, whom George W. Bush considered for a Supreme Court appointment, is such a judge. In another case, she wrote, “One may fervently hope that the Court will someday” re-evaluate Roe and Planned Parenthood v. Casey, the 1992 decision that upheld Roe’s basic principle.
Even with Roe and Casey on the books, Jones and other judges like her (of whom there are plenty on the 5th Circuit) can probably see their way to upholding part or all of the new Texas law. The key in Casey is that courts have to decide whether a state or federal restriction poses an undue burden on a woman’s right to choose abortion. If forcing a patient to listen to the sound of the fetal heartbeat—or cover her ears?—is a reasonable regulation of medical practice, then couldn’t you also justify making clinics spend the money to equip themselves like ambulatory surgery centers? To Jones and other judges, it probably won’t really matter that clinics only doing first-trimester abortions can show that the procedure is far less risky than other kinds of surgery. They are likely to take the state’s claim that this is just about protecting women’s health at face value. Ditto for preventing doctors from consulting by phone or video on medication abortions, or requiring them to get admitting privileges from local hospitals, never mind whether any hospitals will give them.
And maybe—just maybe—judges like Jones will go so far as to uphold the state’s 20-week ban. That’s tough to do under Casey, which draws a clear line between before and after a fetus’s viability. Only after a fetus is viable can states ban abortion outright, Casey says. That’s why another court—the U.S. Court of Appeals for the Ninth Circuit—struck down a ban on abortion after 18 weeks in Arizona. Still, the 5th Circuit could frame the Texas 20-week ban differently—as an extension of the Supreme Court’s 2007 decision to uphold a law banning one kind of rare late-term procedure (so-called “partial birth abortion”). That’s a stretch, but not completely impossible. And even if the 5th Circuit judges just let the state go ahead with one of the other parts of the law, they’ll be putting up a big red flag for Supreme Court review.
The court already is considering whether to hear an ultrasound case. That one is about the Oklahoma Supreme Court’s decision that its state ultrasound law was unconstitutional—in other words, a ruling that conflicts with the 5th Circuit. So maybe that case will go first. But the law Texas just passed is the blockbuster—the one that directly threatens access to abortion for many, many women. Neither side can back down: the stakes are too high. And if abortion opponents win over some 5th Circuit judges, the Supreme Court may not be able to stay away.