Protect women, protect Life: the rational basis of HB 2

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Today, the United States Supreme Court  hears oral arguments for case on Pro-Life Texas law.

Washington, D.C. – March 2, 2016The Supreme Court of the United States will hear oral arguments in a historic case challenging the merits of Texas’ House Bill 2, the Pro-Life Omnibus Bill passed in 2013.  SCOTUS has not directly addressed the issue of abortion since 2007, when the Court upheld the federal Partial-Birth Abortion Ban Act in Gonzales v. Carhart.

Today, the Supreme Court will be considering two explicit questions in the Whole Woman’s Health v. Hellerstadtcase over the Texas law:

(1) Whether, when applying the “undue burden” standard of Planned Parenthood v. Casey, a court errs by refusing to consider whether and to what extent laws that restrict abortion for the stated purpose of promoting health actually serve the government’s interest in promoting health; and

(2) whether the United States Court of Appeals, Fifth Circuit erred in concluding that this standard permits Texas to enforce, in nearly all circumstances, laws that would cause a significant reduction in the availability of abortion services while failing to advance the State’s interest in promoting health – or any other valid interest.

Both of these questions deal with the “undue burden” standard from Planned Parenthood v. Casey, which has been used to challenge every type of Pro-Life legislation across the country since 1992.  Whether the abortion industry is challenging informed consent laws (like Texas’ Sonogram Bill in 2011), prohibitions on late abortions (as in Arizona in 2014), or higher medical standards (as in the current challenge to House Bill 2), the plaintiffs use the vague and undefined “undue burden” standard in all cases.

One historic consequence of the Whole Woman’s Health v. Hellerstedt case before the court next week is that the Supreme Court might provide definitive clarification of what exactly constitutes an “undue burden.”  Such clarification could establish clear guidelines and legal boundaries for the Pro-Life movement across the country, setting a framework for which laws states can pass and enforce without threats of lengthy and expensive legal battles.

However, Texas Right to Life holds, as reflected in our amicus brief submitted to SCOTUS for House Bill 2, that the state of Texas has fulfilled the legal obligation even before the “undue burden” standard is applied.  In Planned Parenthood v. Casey, the Court ruled that unnecessary regulations should be tested by the “undue burden” standard; House Bill 2 is a necessary regulation with a rational basis.  Texas legislators responded to an evident need to raise the medical standards on abortionists and abortion clinics in light many factors, including the atrocities exposed by the grand jury report in the Kermit Gosnell case, the accusations against the Houston abortionist Douglas Karpen, the low standards documented in Texas clinics through inspection reports, and the abortion industry’s refusal to self-regulate. Our brief argues that the court should realize this necessity test is passed even before the Supreme Court determines if the Pro-Life law constitutes an “undue burden.”

Unfortunately, the language of the first question before the court, on whether the court must consider the extent to which the state is in fact promoting health, raises the stakes.  This question gives the Supreme Court the opportunity to determine their authority to determine if the law adopted is an effective means of furthering the state’s expressed interest in promoting health.

The abortion industry is relying upon the court to serve in a more activist role and hold that, although Texas has a valid state interest in passing House Bill 2, the specific policies of (1) requiring abortionists to receive admitting privileges and (2) requiring abortion clinics to follow the same rules as ambulatory surgical centers do not themselves accomplish the state interest of protecting women’s health.

The court will also be looking at the question of whether a Pro-Life state can pass laws according to a state interest if those laws “cause a significant reduction in the availability of abortion services.”  Here, the abortion industry hopes the Supreme Court will rule that no identified state interest is compelling enough to cause abortion clinics to close.

This argument is extremely dangerous.  As the attorney general’s office argued in lower courts, the abortion industry is choosing to close their clinics rather than comply with the law.  Texas Right to Life argues in our amicus brief that Texas is not forcing any abortion clinics to close, as evidenced by the limited parties joining the lawsuit on the plaintiff’s side.  Planned Parenthood, the nation’s largest abortion provider, is notably absent.  The truth is that Planned Parenthood is in fact willing to pay to upgrade their facilities; in fact, they were shifting their business model toward fewer larger abortion clinics, located in urban areas of the state before Texas passed House Bill 2. 

The danger of this question is that if the Supreme Court rules against House Bill 2 because it will “cause” abortion clinics to close, this will establish a “slacker’s veto.” In the future, in order for any Pro-Life law, no matter how commonsense or rational, may be found unconstitutional if only the abortion industry argues they would rather close their doors than comply. This precedent would even create a situation where the regulation that only a licensed physician perform surgical elective abortions, a law thirty-eight states have enacted, could be unconstitutionally burdensome.

Throughout all the legal challenges to House Bill 2, arguments that the bill poses a so-called “undue burden” on pregnant women have been predicated on weak and contradictory evidence.  Several judges have even denounced the abortion industry’s floundering arguments.  For example, Judge Edith Jones of the Fifth Circuit Court of Appeals noted that at least 210 women are hospitalized annually following abortions in Texas – a fact to which the abortion industry conceded – suggesting that those challenging the law have little room to argue against the health and safety provisions these policies established. 

A dearth of evidence of unconstitutionality prompted the use of blatant falsehoods intended to garner sympathy for the nonexistent plight created by Texas’ Pro-Life law.  In fact, House Bill 2 threatens nothing but the bottom line of Texas abortion mills.

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