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Texas abortion law struck down by Supreme Court

SCOTUS says that law regulating abortion clinics is unconstitutional in a 5-3 decision.

The controversy began in July 2013, when former Texas governor Rick Perry signed Texas House Bill 2 into law.  House Bill 2 bans abortion procedures after 20 weeks of pregnancy, required all abortion clinics to meet the same standards as hospital surgical clinics and required that all doctors must have admitting privileges at a hospital within 30 miles of the abortion clinic.  When the bill was signed, only five abortion clinics in Texas met those standards.

House Bill 2 did not take immediate effect.  Shortly after Governor Perry signed the bill, it became apparent that women’s rights activists would fight the law, stating that it imposed an undue burden on a woman’s right to choose.  Prior to the law taking effect, a group of abortion providers sought a facial invalidation of the law as a whole.  The United States District Court for the Western District of Texas granted an injunction keeping the law from taking effect, but the United States Court of Appeals for the Fifth Circuit vacated it three days later.

Again, the Federal District Court ruled the law invalid, and again Texas appealed to the Fifth Circuit.

Once the law took effect, Whole Women’s Health, and other abortion providers brought this lawsuit to challenge the validity of the law as applied at two clinics in McAllen and El Paso, Texas.  Again, the Western District ruled the law invalid, and again Texas appealed to the Fifth Circuit.  The Fifth Circuit reversed the District Court for a second time, based on claim preclusion.  Claim Preclusion is the legal theory that a party cannot bring the same lawsuit twice.

Petitioners challenged the abortion law based on the Fourteenth Amendment.  The Texas District Court held that the abortion law was unconstitutional and imposed an undue burden on women exercising their abortion rights.  Texas appealed the decision to the Fifth Circuit, which reversed the District Court’s decision.  The Supreme Court of the United States rejected this, agreeing with the District Court that the law was unconstitutional.

Abortion has been a topic of heated debate since 1973…

Abortion has been a topic of heated debate since 1973, when another Texas law prohibited women having abortions, except in life-threatening situations.  The infamous decision in Roe v. Wade held that the right to privacy, which is grounded in the Fourteenth Amendment, protected a woman’s right to obtain an abortion.  The right was not absolute; there were some restrictions based on which trimester of pregnancy the woman was in.  Nevertheless, it was a win for women’s rights advocates.  While the majority of abortions take place during the first trimester, there are some that occur later.  States may only place complete bans on abortion at a date where fetuses are known to be viable, and can survive outside the womb.

Following the Roe decision, women’s groups were celebrating, while the opposition was organizing.  The National Right to Life pro-life organization, founded in 1968, gained its largest following after Roe v. Wade.  Other pro-life groups protest abortion on the side of the road and in front of clinics, all with the purpose of stopping abortion.  Five years after the controversial decision, Congress passed the Hyde Amendment of 1976, which banned Medicaid funding of abortions.

Twenty years later, in Planned Parenthood v. Casey, the Supreme Court imposed a standard to determine the validity of laws restricting abortions.  The standard asked whether an abortion regulation has the purpose or effect of imposing an “undue burden,” which is defined as “a substantial obstacle in the path of a woman seeing an abortion before the fetus attains viability.”

The Supreme Court emphasized the importance of Casey, and its requirement at measuring the burden imposed…

The Supreme Court emphasized the importance of Casey, and its requirement of measuring the burden imposed on women who are exercising their abortion rights when deciding Whole Women’s Health.  According to the Court, the admitting requirement and the surgical requirement place a substantial obstacle in the path of women seeking an abortion, and constitutes an undue burden.  Due to the undue burden, the Supreme Court declared House Bill 2 unconstitutional, a major blow to Texas lawmakers.  Even with their loss in Washington, the law still had detrimental effects, with only 19 abortion clinics remaining open in Texas.

Since the Court announced its decision, current Texas Governor Greg Abbott has made remarks which opponents of House Bill 2 say prove that they were attempting to restrict abortion.  Governor Abbott stated “Texas’ goal is to protect innocent life, while ensuring the highest health and safety standards for women.”  Abbott has been very vocal in his belief that the Supreme Court has limited state lawmakers authority to legislate health and safety matters.

Justice Ruth Bader Ginsburg said it best in her concurring opinion that completely took away the state’s argument that the law was passed to protect women’s health.  “It is beyond rational belief that H.B. 2 could genuinely protect the health of women, and certain that the law ‘would simply make it more difficult for them to obtain abortions,’” she wrote.  “When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners … at great risk to their health and safety.”

Another abortion law has made news recently, this one from Indiana.

Another abortion law has made news recently, this one from Indiana.  Governor Mike Perry signed the bill into law in March.   The Indiana legislation would hold doctors liable if a woman has an abortion solely because of objections to the fetus’s race, sex or a disability.  The law also restricts fetal tissue donation and requires doctors performing abortions to have admitting privileges at a hospital or to have an agreement with a doctor who does (similar to the Texas law).  It also requires that women get an ultrasound 18 hours before receiving an abortion.

In response to this bill, Planned Parenthood filed for an injunction in Federal Court to prevent the law from taking effect.  The injunction was granted, but there will still be a trial where the State of Indiana will be able to argue in defense of the law.

Currently, Planned Parenthood is involved in a separate lawsuit, specifically geared toward the fetal tissue restrictions, arguing that requiring burial or cremation is unconstitutional.  The American Civil Liberties Union has also filed a lawsuit in hopes of the ultrasound provision being ruled an undue burden.

Abortion cases have always been a point of controversy, and will continue to be in the future, as both sides vow to continue to fight.  Women and activists everywhere are hopeful that this decision will serve as a deterrent for other states that would try to pass similar legislation.

Katelyn Heath, Ethics Editor Emeritus
About Katelyn Heath, Ethics Editor Emeritus (20 Articles)
Katelyn Heath is a 2017 graduate of Campbell Law School and served as the Ethics Editor for the Campbell Law Observer during the 2016-2017 academic year. She is from Salisbury, North Carolina and graduated from UNC-Charlotte with a Bachelor of Arts in History and Criminal Justice in 2014. Following her first year of law school she attended Baylor Law Schools Academy of the Advocate in Scotland. She is also currently working for Marshall and Taylor PLLC, a local family law firm.
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