Texas' New Abortion Bill Will Go to Court and Texas Women May Win

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After the passage of the abortion bill, or HB2, Friday, two questions loom: what happens next?  When does this case go before the U.S. Supreme Court?  

Briefly, the smart money is betting that lawsuits will come swiftly, and that the Supreme Court is their ultimate destination, even if it takes some time.  How that happens requires a longer answer.

To see how HB2 and other states' laws will land in the Supreme Court, read below. WILL THE SUPREME COURT CONSIDER THE LAW?

Receiving 7,000 petitions annually, the Supreme Court takes a mere fraction of the cases it is asked to hear.   Rule 10 of the Supreme Court rules sets out three considerations when deciding to hear a case: (1) whether there is a circuit split (i.e.: two federal circuit courts have decided questions of law differently or a serious departure from the accepted and usual course of judicial proceedings by a circuit court; (2) whether there is a split state supreme courts on a federal question; and (3) whether a state court or federal circuit court has decided an important federal question that the Court feels it should resolve.

While the Texas law likely won't go to the Supreme Court under the second consideration, the third consideration gives the Court some latitude to consider the law; however, conditions seem ripe to send the Texas law to the Supreme Court under the first consideration. Texas is far from alone in passing abortion restrictions.  

Recently, three other states have done, or are in the process of doing, the same.  According to Reuters, last Monday, a federal judge in Wisconsin temporarily halted the implementation of new abortion restrictions in that state that “[require]women to undergo an ultrasound before they get an abortion and doctors who perform the procedure to have admitting privileges at a hospital located within 30 miles of their practice.”

On June 30, Ohio governor John Kasich signed new abortion restrictions into law; the new restrictions, tacked onto a budget bill, require a woman seeking an abortion to first submit to a trans-abdominal ultrasound.  

Not to be outdone, North Carolina's house Thursday passed a bill requiring the presence of doctors for the administration of all abortion drugs and requiring abortion clinics to satisfy standards normally reserved for ambulatory surgical centers.  (According to The New York Times, similar laws in Mississippi and Alabama have been have been blocked by judges).

Those three states are in different federal circuits (the Seventh, Sixth, and Fourth, respectively), and Texas is in yet another – the Fifth Circuit.  The chances of a circuit split and a trip to the Supreme Court therefore increase significantly.

GETTING OUT OF TEXAS

First, however, the case must make it out of Texas.  It is reasonable to assume that a suit to block the new law from going into effect will be filed in federal court in Texas, very possibly the Western District, and very possibly the division of that court sitting in Austin. Some are speculating that if it does, Sam Sparks will be the presiding judge.  

No one can say with any modicum of certainty how he – or any other judge – would rule, however, in his 2011 opinion temporarily blocking Texas' own sonogram law, Judge Sparks cautioned that it appeared that the Texas Legislature “either wants to permanently brand women who choose to get abortions, or views these certifications as potential evidence to be used against physicians and women.”

If not Judge Sparks, the case could go before Judge Lee Yeakel.  Notably, in 2012, Judge Yeakel issued an injunction barring the state of Texas from removing Planned Parenthood from the Women's Health Program (WHP).  His injunction ultimately was vacated by the Fifth Circuit Court of Appeals when it held that the regulations fell within the authority of Texas to subsidize speech “of its choosing within its programs,” and it criticized Judge Yeakel for actually analyzing the statute in its entirety.

THE CASEY PRECEDENT AND JUSTICE KENNEDY

If the law eventually wends its way to the Supreme Court, the outcome is uncertain.  The governing legal precedent is Planned Parenthood v. Casey, a 1992 Supreme Court opinion which scaled back the protections first articulated in Roe v. Wade in 1973.  Where Roe had set out a trimester framework making a woman's right to choose almost inviolable at various stages of pregnancy, Casey scaled those protections back from rigid thresholds to a more abstract analysis that accounted for changes in medical technology.

Authored by Justice Sandra Day O'Connor, Casey affirmed the undue burden analysis in evaluating a state's restrictions on abortion; a state cannot place an undue burden on a woman's ability to choose, and an undue burden exists if the regulation's or statute's “purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”  

The second part of that equation is viability.  Once a fetus has attained viability, the state has much more authority to regulate or forbid abortion; however, this, too, is limited by concerns for “the preservation of the life or health of the mother.”

Since Casey, the makeup of the Court has changed considerably.  The author of the opinion, Justice O'Connor, has retired.  Justice Antonin Scalia, who dissented in part from Justice O'Connor, still sits on the court and his opinion stated, in part:

“We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.”

There is reason to think that Justice Scalia's view could prevail.  The current DOMA and marriage equality decisions show a court that is increasingly tied to federalism and unwilling to create or expand rights at the federal level.  Even last year's decision on the Affordable Care Act, and its treatment (or limitations on) of the Commerce Clause, which has long been synonymous with the assertion of federal authority and the creation of rights under federal auspices show a court that is uncomfortable treading that path. It would prefer to leave social issues to the states to decide, and simply suffer the rights that were created before they had the reins.

Yet Justice Scalia is not the only member of that panel still on the bench.  Justice Anthony Kennedy, who just last month drafted the opinion striking down the crucial part of DOMA, was on the court during Casey and joined Justice O'Connor in the plurality opinion. It would seem unlikely that he would want to reverse himself now.  However, in the 2007 decision Gonzales v. Carhart, Justice Kennedy wrote the opinion upholding the Partial-Birth Abortion Ban Act of 2003 passed by Congress, holding that its restrictions did not pose an undue burden on a woman's right to choose.  Specifically, Kennedy's opinion rejected the argument that the federal law's restrictions on second-trimester abortions were too broad.

HB2's future and, specifically, its path to the Supreme Court is uncertain. The first step in blocking the law is securing an injunction in federal district court before the law goes into effect.  That part of the process is swift. However, even after an injunction is in place, the law will still have to go through the trial process, then the appeals process, and then, perhaps, together with the abortion laws of several other states will it be heard in Washington.  And in a biting reminder, remember that it's your tax dollars that are paying the attorney's fees to defend this law.  

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