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.”
Before HB2 became law, by contrast, there were 40 licensed abortion clinics in Texas.
The new architectural requirements require abortion clinics to meet the standards established for what are known as “ambulatory surgical centers” in the state of Texas. Yet, as Yeakel explains, there’s little good reason to treat abortion clinics this way. Many clinics, for example, do not perform surgical abortions at all, only medication abortions that use drugs to terminate a pregnancy. Yet the Texas law requires abortion clinics that perform no surgeries whatsoever to undertake expensive renovations that transform them into surgical facilities.
Even in clinics that do perform surgical abortions, women are more likely to experience higher health risks because HB2 forces clinics close to them to shut down then they are to gain some benefit from the new restrictions. “Higher health risks associated with increased delays in seeking early abortion care, risks associated with longer distance automotive travel on traffic-laden highways, and the act’s possible connection to observed increases in self-induced abortions almost certainly cancel out any potential health benefit associated with the requirement.”
The most remarkable portion of Yeakel’s opinion, however, may be the fact that he does not simply analyze the effect of Texas’s law. He also accuses the state of outright dishonesty. Responding to the state’s argument that some Texans can seek abortions in New Mexico if they are unable to obtain one in Texas thanks to HB2, Yeakel notes that this argument completely undermines any suggestion that these laws are supposed to protect women’s health:
If the State’s true purpose in enacting the ambulatory-surgical-center requirement is to protect the health and safety of Texas women who seek abortions, it is disingenuous and incompatible with that goal to argue that Texas women can seek abortion care in a state with lesser regulations. If, however, the State’s underlying purpose in enacting the requirement was to reduce or eliminate abortion in parts or all of Texas, the State’s position is perfectly congruent with such a goal.
Yeakel, in other words, calls a sham a sham. He recognizes, in the words of the Supreme Court, that the purpose HB2 is to “place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” And he comes just one step from outright accusing the state of lying when it claims that the law was actually enacted to protect women’s health.
The Fifth Circuit reversed Yeakel once in a case involving HB2. They are very likely to do so again. In the meantime, however, Yeakel has produced a penetrating opinion that tears away the reason abortion opponents have offered to justify laws that exist for one and only one purpose — to take away women’s ability to choose to have an abortion.