Texas Abortion Case

Here’s the NY Times article: http://www.nytimes.com/2015/01/08/us/texas-abortion-clinic-rules-tested-in-appeals-court.html

The case is about a Texas law that requires abortion clinics to meet equipment and safety standards of ambulatory surgical centers. Apparently, these laws have been passed in many states. In Texas, the result will be the closing of many facilities, so that women seeking an abortion could have to travel hundreds of miles to obtain one. The question before the court, as far as I understand it, is whether that would constitute an undue burden. I think a similar law in Mississippi (maybe?) was overturned, since it would have closed the only clinic in that state, and it was considered an undue burden to force women to travel to another state. I don’t know which court level it was overturned.

I have at least two questions for the crack legal scholars here (and anyone else who wants to join in, of course) at the SDMB:

  1. Do you think this constitutes an undue burden, given Supreme Court precedent as it is today?
  2. If the case makes it all the way to SCOTUS, how do you think they will rule?

My non-law-talking-person opinion is:

  1. Yes, this would be an undue burden. First of all, there may be no actual medical reason for these restrictions, but I understand that’s OK under rational basis. More importantly, the effect on poor women may ultimately be that there’s effectively no access to this (currently) constitutionally protected procedure. That second part makes this unduly burdensome.
  2. I think the SCOTUS would probably rule against the abortion clinics, 5-4, with the usual conservative/liberal split.

If it’s possible, I would love to avoid arguing the morality of abortion in this thread. If I have misrepresented the case, I welcome correction.

I would not say that abortion is a constitutional right, it is a SCOTUS ruling, there is no amendment.

But It does make sense that abortion clinics should have the ability to stabilize and prepare for transport someone under their care, including those who were to be aborted but somehow made it into the air breathing world still alive.

It should not shut down abortion clinics but set standards to ensure the health of those under their care and give time and funding to come up to those standards.

Under current SCOTUS precedent, it is.

Pretty unlikely, for anything other than late-term abortions which are, I’m sure, already illegal in Texas.

The effect of the law is to shut down the clinics, but that’s not what the law says, of course. A law that made abortion clinics illegal would very likely be unconstitutional. In this case, the result of the law is that these clinics are shutting down. It may be analogous to a law that required $1 million to get a gun license. That law wouldn’t make guns illegal, but charging $1 million for the license would surely be considered an undue burden on 2nd Amendment rights.

IANAL, but I think the Supremes take a dim view of legislatures trying to play coy with a ruling and do an end-run around something that has been accepted as a constitutional right for 40 years. Sure, there can be restrictions, like the restrictions on free speech that disallow yelling fire in a crowded theater, but I think what Texas has done goes beyond reasonable and I foresee SCOTUS overturning if it gets to them.

Does that actually happen? Do abortions “go wrong” and end up with a living, delivered child?

I think things like that happened in that very illegal clinic in PA. The doctor there was found guilty of first degree murder: http://www.cnn.com/2013/05/13/justice/pennsylvania-abortion-doctor-trial/

On that subject, I further hope it’s possible to set aside clear outliers like that lunatic. However, I suppose some may say that his clinic is germane to this discussion, since he didn’t have proper facilities. I would say that out of hundreds of clinics, his is the only one I’ve heard of that was such a nightmare facility and is not relevant to the Texas law. If possible, I’d rather see this discussion focused on the Texas law and my questions, but I’m not the boss of you, so have at it.

I’m signing off for the night, and will have limited opportunity to be part of this discussion tomorrow, but I’ll get back to the thread as soon as I can.

Yes. If it didn’t, you wouldn’t have doctors standing trial for murder after killing babies who survived an abortion. Of course, sometimes it’s ruled not directly their fault and they just lose their medical license.
As for the OP, are clinics where dental surgery performed held to the same standards as hospitals? If they are, I suppose that no, it’s not undue burden to hold a clinic that performs other invasive procedures be held to the same standard, and the court would rule to that effect.

It is hard to tell how the Supreme Court would rule. The “undue burden” “standard” is something that is found in no other area of constitutional law. It is wholly a creation of Justice O’Connor. As Scalia said in his dissent in Planned Parenthood v. Casey, the Court has not attempted to define what type of burden is “due” when it comes to abortion.

Any restrictions will increase the costs of an abortion and cause poor women an increased burden and possibly make the difference between being able to get an abortion and not get one. How far is too far? The undue burden standard puts the decision in the mind of a judge who has no baseline to go from except his own subjective determination of “too far” or “not too far.”

I see the subject come up fairly often when it comes to gun control. Is that not something that’s actually found in the law? I don’t ask to be sarky, I honestly don’t know.

Well, to be fair, in how many other cases do you have such a blatant and obvious end-run around constitutional rulings? They’re barely even concealing it - just enough to have plausible deniability in front of a court of law. I mean, christ, look at the balls on these people. “Americans United for Life” arguing that the law isn’t meant to prevent abortions, no, it’s just a coincidence that it’ll lead to almost every abortion clinic being closed.

And yet, we run into the problem that regardless of how subjective this is, you cannot ignore the obvious intent of the laws. These aren’t to make abortion safer. Requiring admitting permissions at a local hospital does nothing to help abortion patients, as anyone can easily be admitted to the emergency room. They’re to make it harder to have an abortion. You want an easy way to check this? Was the bill sponsored primarily by republicans? There’s your answer. I mean, what if a state decided to create a $100,000 yearly “gun tax” on any store selling guns there. This would obviously be an attempt to get around second-amendment rights… But I’m sure you could justify it by pointing out the massive costs to the state that gun death creates.

The constitution means whatever the Supreme Court thinks it means, so yes, it’s a constitutional right. For now.

(It should be clear, I trust, how much fondness I have for abortion, the Supreme Court, and the United States Constitution, but the state of the law is what it is).

I don’t know. I can’t figure out the right search terms to figure out whether dental surgery centers are held to those standards. I also have no idea whether dental surgery has similar chances of complications that abortions have. I would have thought that you were knocked out for dental surgery, and I know you’re not knocked out for, for example, chemical abortions.

So, if dental surgical centers are not held to those standards, or if abortions generally come with far lower risks of complications, would you say it is an undue burden?

They absolutely make it harder to get abortions. So do 24 hour waiting periods and parental consent laws. Both of those laws undeniably make abortion more difficult but have been held by the Supreme Court to not pose an undue burden.

Further, the Court has also held that states have a legitimate interest in protecting the unborn; so it is not important if the “real reason” behind these laws are to make abortions harder to get. The Supreme Court has said that is okay. So the states can restrict abortion rights, but they cannot impose an undue burden. They can protect the unborn so long as they aren’t too successful at doing so, then it starts to look like an undue burden.

There has been no meaningful analysis of what that phrase means. It’s just that in each case the Court has said “this is okay, this is not, this okay, not this, okay, okay, no, okay, no” with no real rhyme or reason to it. Is the burden that the Texas law imposes “undue”? Hell if I know. It’s just up to a majority of 5 super-legislators who follow this rootless standard.

Is having to travel 100 miles for an abortion an undue burden? 200 miles? 1000 miles? The state didn’t close down the clinic. Nothing stops a company from opening a complaint clinic within 10 miles of everyone except for the cost. Must a state use an income statement approach to see if its laws make abortion clinics less profitable? Again, who in the hell knows under this absurd and meaningless standard?

As far as the gun analogy, the appropriate standard hasn’t been formed for the second amendment, but as a right protected by the Bill of Rights, it would almost have to be strict scrutiny.

Under Roe, the abortion test was strict scrutiny. Planned Parenthood v. Casey abandoned that and introduced the undue burden standard which, whatever in the hell it is, would be less than strict scrutiny.

jtgain – you’re a lawyer, right? What’s your opinion? Do you think it’s an undue burden, and if it reached the Supreme Court, do you think the Texas law would be upheld or struck down?

If I was on the Court, I would vote with Scalia and Thomas and state that Roe and Casey were wrongly decided and that the Constitution does not guarantee a right to an abortion. I would judge abortion laws only for rational basis.

I would also join with Roberts and Alito and say that this particular law does not impose an undue burden. I don’t think it is unreasonable to ask that these clinics comply with reasonable regulations that are imposed on other types of medical clinics. I also think that a day or two of travel is not an undue burden on most people. Obviously, some people may not be able to afford such travel, but that will be true of any restriction. To phrase the question so as to see if the burden is too much on the very poorest of citizens would turn the undue burden standard into something stronger than strict scrutiny.

However, I would probably be on the losing side of a 5-4 decision with Kennedy arguing many of the points you raised in the OP.

But, as I said, it would be difficult to argue that Kennedy et al. would be wrong in their undue burden analysis. It is completely subjective and simply a question of how much of a burden is too much.

To further address this, let’s assume that the 2nd amendment operated on an undue burden standard. I would agree that a $1 million license would be an undue burden.

Is that the equivalent of what Texas has done here? The article says that there would be 20 abortion clinics in Texas after the law. What would be the increased cost to travel to the clinic and spend the night in a hotel? Maybe $200? $500?

So to compare apples to apples, the question would have to be: Would a $200 (or $500) gun license be an undue burden on the right to keep and bear arms? How do we determine what burden is acceptable? For some people, $200 is an enormous amount of money and other people blow that at the bar on the weekend.

Where do we set the baseline for burdens in the context of abortion and guns? My problem with the standard is that it is not one. I’ll bet every poster in this thread has a different opinion as to where that line should be on each issue, and I’ll further bet that most posters who think the gun burden threshold should be low probably would also think the abortion threshold would be high. Likewise, those who think the gun threshold should be high would think the abortion one should be low.

When the “standard” comes down to someone’s personal preferences, it is not a standard but a value judgment. I also have the same bitch about the “best interests of the child” standard in family court.

That would be a pretty shocking departure from that stare decisis principle, but I agree that it’s a possibility with those two, and maybe even Alito. If Roe and Casey were overturned, wouldn’t there be no reason to judge abortion laws on any basis? Why a rational basis? Thanks for the insight in the rest of your post. I agree it may go the way you say.

I disagree that those would be the only costs, since Texas probably also has a 24-hour waiting period and the procedure, whatever it is, may also require follow-up visits. Plus, for people who may consider this a burden, there will likely be lost wages for each of those days. In any case, you’re probably right within an order of magnitude regarding the costs, so I’ll accept that. I was using $1 million to make it an obvious undue burden on gun rights.

I agree with those terms being nebulous, but that happens all over the place with legal issues – reasonable person standards, rational basis, and so on. I don’t think undue burden is an outlier when it comes to legal standards.

I don’t understand why you think that pro-choice and pro-gun rights people are mostly non-overlapping sets. Those issues seem to be completely orthogonal to me. I think most people probably are for some abortion restrictions and some gun restrictions. However, that discussion is probably better kept for a separate thread.

Any abortion where that could happen is not going to be done in a standalone clinic.

I’ve never had an abortion, but I’ve had dental surgery under GA, and it was in the oral surgeon’s office. Everyone I know who had an abortion did not have any kind of anesthesia-- at most they had OTC pain meds after for cramping, and one had antibiotics (no, I don’t know why).

In and of itself, a 200 mile trip might not seem like an undue burden, but you have to look at it in context with several other things.

Texas probably has a restriction on abortion on demand that ends around 14 weeks. Women who have and “Oops” pregnancy sometimes don’t know until they are are almost past the point of being eligible for an on-demand abortion. Women seeking an abortion for an intentional pregnancy because the fetus has a defect may know they are pregnant by six weeks, but they probably do not know about the defect until 14 weeks. So, most women are already racing the clock. You don’t have 13 weeks to get the money together, find transportation, and an hotel, plus schedule the 24-hr waiting period (if Texas has one), not to mention finding a clinic that can get you in STAT. You maybe have 13 HOURS. And if you need a judicial bypass because you are under 18, forget it. You are having the baby, or going to a back alley. In Indiana, the ink wasn’t dry on the parental consent law before the first teenager was dead. Her name was Rebecca Bell.

Anyway, when you put all those things together (not to mention, scheduling tests), then having to go to a clinic a long way away does become a pretty serious burden. Of course, maybe Texas could extend the length of time allowed for abortion on demand, but I doubt it, since we all know the reason for this is to impose a burden, so women won’t have abortions.

Agreed, the burden is not just the (medically unnecessary, pointless) restrictions, it’s the time crunch. Pregnancy tests show up positive around five weeks. Testing for birth defects happens around 10-12 weeks. Throw in waiting periods and travel, and you have essentially taken away choice from a lot of people. And all of this, for what purpose? Certainly not a medical one- especially as most abortions these days a a pill that you take at home.

Even more diabolically, this plan leaves an escape clause for the well-off, who can buy a last-minute ticket to wherever.