Fifth Circuit Upholds HB2, Texas Restrictive Abortion Statute

Professor Ruthann Robson, City University of New York (CUNY) School of Law

A panel of the Fifth Circuit upheld the restrictive abortion law of Texas in its opinion in Planned Parenthood of Texas Surgical Providers v. Abbott. 

Authored by controversial conservative Judge Edith Jones, the unanimous panel opinion upholds positions of equally controversial  Texas HB 2 passed despite a well-publicized filibuster by state senator Wendy Davis.  The district judge's decision  had enjoined the "admitting provisions of HB 2 as unconstitutional: 

A physician performing or inducing an abortion:
(1) must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that:
(A) is located not further than 30 miles from the location at which the abortion is performed or induced; and
(B) provides obstetrical or gynecological health care services

Texas state capitol building via

The Fifth Circuit quickly stayed the injunction.  In today's panel opinion, Judge Jones wrote that the the district judge's opinion "applied the wrong legal standards under rational basis review and erred in finding that the admitting–privileges requirement amounts to an undue burden for a 'large fraction' of the women that it affects."

As to rational basis, Judge Jones highlighted the highly deferential standard, its place in a democracy, its practicality (if the legislature doesn't think a law is working, it can change it), and its application to HB2:

Viewed from the proper perspective, the State’s articulation of rational legislative objectives, which was backed by evidence placed before the state legislature, easily supplied a connection between the admitting–privileges rule and the desirable protection of abortion patients’ health.

As to the undue burden, Judge Jones noted that the Supreme Court's 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey,

counsels against striking down a statute solely because women may have to travel long distances to obtain abortions. The record before us does not indicate that the admitting–privileges requirement imposes an undue burden by virtue of the potential increase in travel distance in the Rio Grande Valley.

The narrow exception of the Fifth Circuit's reversal if that the  admitting privileges requirement "may not be enforced against abortion providers who timely applied for admitting privileges under the statute but are awaiting a response from the hospital."