The 5th Circuit Court of Appeals Left the Anti-Abortion Bill HB2 Mostly Intact
Since the summer of 2013, there’s been an ongoing question regarding just how accessible abortion in the state was going to be in the wake of the passage of the 83rd legislature’s HB2, the so-called omnibus abortion bill that introduced sweeping new measures that would restrict access to the procedure throughout the state. It made a star, briefly, out of former state senator and Democratic gubernatorial candidate Wendy Davis; it revealed long-simmering tensions in the Texas culture war, embodied in a clash between people who wore blue shirts to represent their support for the bill, and people who wore orange shirts to represent their opposition; and, ultimately, it passed in a special legislative session called by then-Governor Rick Perry.
Almost immediately, the lawsuits began—a two-year process that went from a federal appeals court in Austin to the 5th Circuit Court of Appeals and back and forth, in different lawsuits filed by different entities. The most recent of those lawsuits, Whole Woman’s Health v. Cole (initially filed as Whole Woman’s Health v. Lakey, before Texas Department of State Health Services Commissioner David Lakey left his position as the state’s top public health official), finally received a long-awaited ruling from the 5th Circuit yesterday. And after more than six months, the court has decided that the law can remain more or less fully intact.
What That Means
Within the next two weeks, all but eight abortion clinics in the state of Texas will close. One of those clinics, the Whole Woman’s Health facility in McAllen, will remain open with an asterisk—while it doesn’t meet the physician admitting privileges requirement that HB2 necessitates for all clinics, the court found that it would represent an undue burden for abortion-seekers in the Rio Grande Valley to have to make the 480 mile round trip to San Antonio if the clinic were to close.
We’ll get to the details of the McAllen clinic, which are unusual, in a moment. But for the rest of Texas, the impact is clear: In Houston alone, the number of clinics will be reduced by two thirds. In El Paso, the only clinic will close. In Austin, the number of clinics will go from two to one (down from four before the passage of HB2). Three quarters of the clinics in Dallas will close, leaving one in Dallas and one in Fort Worth. In San Antonio, one of the three remaining clinics will close. That’s two in Dallas/Fort Worth, two in Houston, two in San Antonio, one in Austin, and one-with-an-asterisk in McAllen.
That asterisk is a curious one: The language in the 5th Circuit’s ruling says that law’s requirement that all clinics that provide abortions meet the standards of an ambulatory surgical center (ASC) is suspended for the Whole Woman’s Health facility in McAllen, but only when they’re providing those services to a resident of the Rio Grande Valley. If someone who currently lives in Austin, but whose family is based in the Valley, seeks an abortion, they won’t be allowed to have the procedure done in McAllen. (Additionally, someone in Falfurrias, which is an hour north of McAllen, would have to make the 320-mile round trip drive to San Antonio if they seek an abortion.)
It’s also not entirely clear where the burden of proving residency in Hidalgo, Starr, Cameron, or Willacy Counties—the four counties that make up the Rio Grande Valley—lies, or how that residency is determined. (Is a college student who attends UT, but whose parents live in Harlingen, an Austin resident or a Valley resident, for the purposes of the law? Is the student required to prove that, or is Whole Woman’s Health required to verify that residency?)
It’s an unclear bit of language in a law that, it seems, requires a lot of clarity to be enforced effectively.
What Happens Next
Since the moment it was introduced, HB2 seemed destined for a showdown in the U.S. Supreme Court. That’s something, indeed, that both sides have been anticipating. For opponents of the law, it’s been the only real shot at seeing it defeated—its passage in the conservative 5th Circuit may not have been inevitable, but it was maybe the next-closest thing—while abortion opponents have long sought the opportunity to see the procedure re-assessed by the highest court in the land.
The Supreme Court has intervened in HB2 once before, too. In October 2014, the court upheld an injunction regarding the ASC requirements in the law until the 5th Circuit issued their final ruling. (That injunction kept a number of clinics operating in the eight months that followed, and it’s those clinics—minus the one in McAllen—that are closing now.) It seems likely that the court will decide to hear HB2, but it’s a lot harder to determine what fate it will meet there.
In some ways, any part of the law that survives a challenge to SCOTUS is a victory for the forces that championed the law in 2013—while it’d be disappointing for them to lose the ASC requirements, or the admitting privileges, or any other part of the law that currently exists, if any part of the law remains intact after a Supreme Court challenge, that’s ground they’ve gained, permanently, over where they were before HB2 passed.
But even that isn’t necessarily a guarantee. Of the nine Justices on the U.S. Supreme Court, four of them—Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagen—are considered “safe” votes for abortion rights advocates. Three of the others—Clarence Thomas, Samuel Alito, and Antonin Scalia—are considered solid locks against abortion. That leaves Anthony Kennedy and Chief Justice John Roberts as potential swing votes. Kennedy supports abortion rights in a broad sense, but seems willing to uphold laws that deal with access. Roberts, meanwhile, has angered abortion foes with his support for Roe V. Wade, but the scope of his jurisprudence regarding abortion is a big question mark at the moment. It’s possible that Kennedy and Roberts would both join with the more conservative wing of the Supreme Court in settling HB2, but it’s hardly a lock.
The Supreme Court appeal was filed almost immediately after the 5th Circuit issued its ruling. This morning, the plaintiffs also filed for an injunction with the 5th Circuit, asking the court to stop the law from being implemented pending that appeal. Should the 5th Circuit reject that injunction, as seems likely, that request could go to the Supreme Court, too, which would keep the clinics that are open today, but which will otherwise be closed in two weeks, open for a while longer while everything shakes out.