Fifth Circuit Upholds the Enforcement of Two Abortion Provisions of a Texas Act--Whole Woman's Health v. Lakey.

Abstract

Fifth Circuit Upholds Enforcement of Two Abortion Provisions of a Texas Act - Whole Woman's Health v. Lakey1 - On August 29, 2014, District Court for Western District of Texas enjoined statewide enforcement of two abortion provisions of a Texas act2-the admitting-privileges requirement and ambulatory-surgical-center requirement.3 Less than a month later, United States Court of Appeals for Fifth Circuit stayed district court's injunction, permitting Texas to immediately enforce two abortion provisions.4 On October 14, 2014, Supreme Court of United States issued an order to vacate Fifth Circuit's stay, reinstating district court's injunction. 5 The Fifth Circuit is currently hearing arguments for appeal of district court's decision.6The act at issue, Texas House Bill 2, was passed 2013 by Texas legislature order to regulate abortion procedures, providers, and facilities, as well as create penalties for providers and facilities do not comply.7 The challenged admitting-privileges requirement of bill provides that a physician providing or inducing an abortion must have admitting privileges at a hospital is located within 30 miles of where abortion is to be performed.8 The challenged ambulatorysurgical-center requirement states that, by September 2014, the minimum standards for an abortion facility must be equivalent to minimum standards adopted under [Tex. Health & Safety Code] Section 243.010 for ambulatory surgical centers, which would require expensive changes to both facilities (the physical plant portion) and operations at existing abortion centers. 9 If enforced, admitting-privileges requirement and ambulatory-surgical-center requirement would potentially leave state of Texas with only seven or eight abortion facilities.10The present issue arises from a challenge abortion providers brought against admitting-privileges requirement and ambulatory-surgical-center requirement as applied to facilities operated McAllen and El Paso, Texas.11 The plaintiffs also challenged ambulatory-surgical-center requirement on its face and as applied to medical abortions.12 The District Court for Western District of Texas held admitting-privileges requirement combination with ambulatory-surgical-center requirement is unconstitutional as applied to McAllen and El Paso clinics.13 The court further held ambulatory-surgical-center requirement is an unconstitutional hurdle for women seeking a previablity abortion.14Texas appealed district court decision and requested an emergency motion to stay district court's injunction.15 The Fifth Circuit reviewed district court's decision by applying standards set forth Gonzales v. Carhart16 and Planned Parenthood of Southeast Pennsylvania v. Casey,17 first applying rational basis test, then independently determining if burden on a woman's choice is undue.18 The Fifth Circuit noted under rational basis review, once a state establishes a law is rationally related to a legitimate state interest court should defer to legislature's judgment.19 The court affirmed district court's holding admitting-privileges requirement and ambulatory-surgical-center requirement both overcome rational-basis bar.20However, Fifth Circuit did not agree with district court on question of whether ambulatory-surgical-center requirement imposes an undue burden;21 instead finding requirement does not generally plac[e] a substantial obstacle path of a woman seeking an abortion of a nonviable fetus.22 The Fifth Circuit reiterated Casey standard which holds a statute unconstitutional if in a large fraction of cases which it is relevant, it will operate as a substantial obstacle to a woman's choice to undergo an abortion.23 Although district court had found the practical impact on Texas women due to clinics' closure statewide would operate for a number of women Texas just as drastically as a complete ban on abortion, Fifth Circuit nonetheless concluded a significant number is insufficient unless it to amounts to a large fraction. …