Fifth Circuit's Excessive Deference to the State Renders the "Fundamental" Right to Abortion Meaningless

The difference between the trial court's opinion in Planned Parenthood v. Abbott -- permanently enjoining Texas's hospital admitting privileges requirement for abortion providers -- and that of the Fifth Circuit -- staying the trial court's injunction pending an expedited appeal -- boils down to burdens of proof.  U.S. District Judge Lee Yeakel required the state to show evidence that its admitting privileges requirement actually furthers women's health.  After a trial, he concluded the evidence showed that the requirement did absolutely nothing to protect women's health, and it would cause clinics across Texas to shut down.  He held that the law therefore lacked a rational basis, did not further a valid purpose, and had the effect of placing a substantial obstacle in the path of women seeking abortions. He was not alone in that view: four other courts have recently temporarily blocked admitting privileges requirements based on similar reasoning.   Judge Yeakel's approach is correct: when a law burdens fundamental constitutional rights, the state should be required to produce evidence that the law in fact furthers some valid governmental purpose. (More on that issue here.)

The Fifth Circuit panel, on the other hand, deferred to the state on every question of fact in determining that Judge Yeakel's opinion was likely to be overturned on appeal.  In reviewing the state's justification for the law, the panel applied the weakest possible form of rational basis review, a la FCC v. Beach Communications, requiring only that there be some "conceivable" justification for the law.  In applying the undue burden standard, the court found that there was no smoking gun purpose to burden women apparent on the face of the law (which it said was required for a facial challenge).  And as to effects, the court minimized the evidence of so many clinics shutting down and the burdens (or even absolute obstacles) this would impose on some women.  The court relied in part on the facial nature of the challenge for its effects ruling, essentially thumbing its nose at the Supreme Court's "large fraction" test in Casey and suggesting that it was bound instead by the Fifth Circuit's preference for applying the Salerno standard in abortion cases.  That test places plaintiffs in the exceedingly difficult position of proving that there is no set of circumstances under which the statute would be constitutional.  (More on the problems with this approach to facial challenges here.)

In granting the emergency stay, the court compared the relative harms that each side would suffer if the stay were or were not granted.  Now what, you may wonder, is the "irreparable harm" that the state of Texas will suffer if the status quo is maintained while this appeal is pending?  The panel found that "the State necessarily suffers the irreparable harm of denying the public interest in the enforcement of its laws."  This, compared with the immediate elimination of abortion services in 24 counties in Texas.  Even for the Fifth Circuit, the callousness of this opinion is shocking.

The Fifth Circuit's opinion in Planned Parenthood v. Abbott is available here.

-CEB