Texas’s justification for an anti-abortion law enacted last year is “disingenuous,” according to Judge Lee Yeakel’s opinion striking parts of that law on Friday. Indeed, Judge Yeakel’s opinion dismantles the state’s avowed justification for the law, pointing out that it does little to protect women’s health and a great deal to restrict access to abortion. Whatever the strength of Yeakel’s argument, however, his decision is unlikely to stand for long, as it will be appealed to one of the most conservative courts in the country — and the Supreme Court has done little to constrain that court from restricting the right to choose.
For 22 years, the legal standard governing when a state may enact a law restricting abortions has been as clear as a milkshake. In its 1992 decision in Planned Parenthood v. Casey, the Supreme Court held that states are free to regulate abortion so long as they do not impose an “undue burden” on the right to choose. “An undue burden exists,” the Court explained, “if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” The practical effect of this vague standard is that it delegated a great deal of discretion to lower court judges to decide which abortion restrictions they would permit and which ones they would strike down, as the Court’s undue burden standard offered them little firm guidance on how to decide abortion cases.
Meanwhile, in conservative states like Texas, Casey has become an invitation to probe just how far state lawmakers can go in restricting abortions before the courts say “no farther.”
One of the most significant innovations developed by lawyers and lawmakers who oppose abortion are sham health laws that, on their surface, appear intended to make abortions safer, but which have the practical effect of making abortions difficult or impossible to obtain. Texas’s House Bill 2 (HB2) is one of these laws. Last October, a provision of HB2 took effect that prohibited doctors from performing abortions unless they have admitting privileges in nearby hospitals. Judge Yeakel halted that provision shortly before it took effect, noting that “there is no rational relationship between improved patient outcomes and hospital admitting privileges.” The Fifth Circuit reinstated the law only a few days later.
On Monday, another provision of HB2 is supposed to take effect. This provision imposes rigid new architectural requirements on Texas abortion clinics, including “electrical, heating, ventilation, air conditioning, plumbing, and other physical plant requirements as well as staffing mandates, space utilization, minimum square footage, and parking design” requirements. Many clinics are physically incapable of complying with these requirements in their existing locations. For those clinics, “[t]he cost of acquiring land and constructing a new compliant clinic will likely exceed three million dollars.” The remaining clinics can expect to pay as much as 1.5 million dollars to bring their facilities into compliance with the law. According to Yeakel’s opinion, should this provision of the law take effect, “only seven facilities and a potential eighth will exist in Texas that will not be prevented . . . from performing abortions.”