Monday, June 27, 2016

SCOTUS Says No To Targeted Regulation of Abortion Providers (TRAP) Laws

In a 5-3 ruling on Whole Woman's Health v. Hellerstedt, the Supreme Court strikes down Texas' House Bill 2 (HB2) abortion regulation law, finding it places an "undue burden" on women's constitution right to make their own reproductive health care decisions.

This case challenged the constitutionality of two provisions of the HB2 law regulating abortion in Texas. One provision requires doctors who perform abortions to have privileges to admit patients to a local hospital; the other requires abortion clinics to have facilities that are comparable to outpatient surgical centers. Inside the courtroom, lawyers for the state of Texas' tell the judges HB2 provisions are constitutional because they are intended to protect women’s health. Outside the courtroom, state leaders like Texas Governor Greg Abbott have admitted that the law is intended to limit abortion as much as possible.

Last June, the U.S. Court of Appeals for the Fifth Circuit overturned a federal district judge's October 2013 ruling that HB2 violates the constitutional rights of women who seek an abortion as one of their reproductive health care options. The Fifth Circuit's ruling would have allowed the state to immediately enforce all provisions of HB2.

Immediately following that Fifth Circuit ruling, the Supreme Court granted plaintiff's petition asking the high court to temporarily blocked that appellate court's ruling, and Texas' enforcement of the HB2 law, pending appeal.  The plaintiffs argue the law offers little to no medical benefits to women and that the real intent of the law is to close clinics and limit women’s access to abortions.

The Fifth Circuit gave a sweeping 56 page endorsement of such Targeted Regulation of Abortion Providers (TRAP) legislation anti-abortion lawmakers in Texas and other states have adopted in recent years to make abortion unavailable.

Rebuking both Texas anti-abortion lawmakers and the Fifth Circuit, Justice Stephen Breyer wrote the majority opinion for Whole Woman's Health v. Hellerstedt saying:
“We conclude that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes. Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, and each violates the federal Constitution.”

“We have found nothing in Texas’ record evidence that shows that, compared to prior law (which required a 'working arrangement' with a doctor with admitting privileges), the new law advanced Texas’ legitimate interest in protecting women’s health.”

“Texas seeks to force women to travel long distances to get abortions in crammed-to-capacity superfacilities. Patients seeking these services are less likely to get the kind of individualized attention, serious conversation, and emotional support that doctors at less taxed facilities may have offered.”

“The surgical-center requirement also provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an 'undue burden' on their constitutional right to do so.”

Regarding the Texas requirement that doctors performing abortions have admitting privileges at nearby hospitals, Breyer noted evidence found that hospitals often condition admitting privileges on reaching a certain number of admissions per year, a requirement many abortion providers would not be able to meet.

“In a word, doctors would be unable to maintain admitting privileges or obtain those privileges for the future, because the fact that abortions are so safe meant that providers were unlikely to have any patients to admit.”

Breyer ridiculed the idea that abortion needed stricter regulations than procedures that have no similar regulations such as childbirth (which is 14 times as deadly), colonoscopies (40 times as deadly) and liposuction (28 times as deadly), saying:

“The upshot is that this record evidence, along with the absence of any evidence to the contrary, provides ample support for the District Court’s conclusion that ‘[m]any of the building standards mandated by the act and its implementing rules have such a tangential relationship to patient safety in the context of abortion as to be nearly arbitrary.’ [46 F. Supp. 3d, at 684.] That conclusion, along with the supporting evidence, provides sufficient support for the more general conclusion that the surgical-center requirement ‘will not [provide] better care or . . . more frequent positive outcomes.’ [Ibid.] The record evidence thus supports the ultimate legal conclusion that the surgical-center requirement is not necessary.”

On the ability of Texas medical providers to meet the demand for abortions following clinic closures, Breyer said:

“We disagree that, according to common sense, medical facilities, well known for their wait times, operate below capacity as a general matter. And the fact that so many facilities were forced to close by the admitting privileges requirement means that hiring more physicians would not be quite as simple as the dissent suggests. Courts are free to base their findings on commonsense inferences drawn from the evidence. And that is what the District Court did here.”

“We add that, when directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case."
Justice Ruth Bader Ginsburg joined Breyer's opinion with a brief concurring opinion:"
“The Texas law called H. B. 2 inevitably will reduce the number of clinics and doctors allowed to provide abortion services.”

“Texas argues that H. B. 2’s restrictions are constitutional because they protect the health of women who experience complications from abortions. In truth, ‘complications from an abortion are both rare and rarely dangerous’ ” — as demonstrated in an amicus brief by the American College of Obstetricians and Gynecologists.

“Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory surgical-center or hospital admitting-privileges requirements,including tonsillectomy, colonoscopy, and in-office dental surgery.”

“Given [these] realities, 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. When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety. So long as this Court adheres to Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey, Targeted Regulation of Abortion Providers laws like H. B. 2 that do little or nothing for health, but rather strew impediments to abortion, cannot survive judicial inspection.”
In her concuring opinion Ginsburg dismisses the state's argument about its interest in protecting “the health of women who experience complications from abortions,” by clearly stating the court's factual finding that “complications from an abortion are both rare and rarely dangerous.” She recites a laundry list of studies detailing that abortion is an extremely safe and uncomplicated medical procedure. Writing into law the court's factual finding abortion is safe, makes it nearly impossible for lawmakers or attorneys general in any state to claim strict abortion regulations are needed to protect women from a medically dangerous procedure. Should they try, future courts will simply cite her factual finding they are not dangerous.

Anti-abortion lawmakers in Texas and other states have adopted abortion regulations to impose unnecessary and burdensome regulations on abortion providers intended to make it logistically or financially impossible to operate. These regulations are known as Targeted Regulation of Abortion Providers (TRAP) laws. Common TRAP regulations include those that limit the provision of care only to physicians; force health care clinics to convert needlessly into mini-hospitals at great expense; require abortion providers to get hospital admitting privileges; and require facilities to have a transfer agreement with a local hospital without requiring hospitals to grant such privileges. Further, in many states abortion care is limited to hospitals or other specialized facilities, rather than clinics or physicians' offices.

44 states and the District of Columbia have measures subjecting abortion providers to burdensome restrictions not imposed on other medical professionals: AL, AK, AZ, AR, CA, CT, DE, DC, FL, GA, HI, ID, IL, IN, IA, KS, KY, LA, ME, MD, MA, MI, MN, MS, MO, NE, NV, NJ, NM, NY, NC, ND, OH, OK, PA, RI, SC, SD, TN, TX, UT, VA, WA, WI, WY.  Alabama, Kansas, Louisiana, Mississippi, Oklahoma, Tennessee and Wisconsin — have TRAP laws currently being challenged in courts that require abortion doctors to have admitting privileges at local hospitals. These seven states with pending abortion cases are likely to be the first to feel the legal consequences of the decision. Eight more states — Arizona, Michigan, Missouri, Pennsylvania, Missouri, North Dakota, Utah and Virginia — have TRAP laws similar to the ones struck down in Texas, although those states haven’t yet been challenged in court, those lawsuits will likely quickly follow SCOTUS' ruling today.

In Alabama, the attorney general announced a few hours after SCOTUS struck down Texas' two abortion regulations that the state is ending its legal fight over the state's admitting-privileges law in light of the high court's decision, and Arizona's Senate Minority Leader Katie Hobbs said she will introduce legislation in the coming session to appeal the state's admitting-privileges law in light of the high court's ruling. Supreme Court decision:

Full background of Texas' House Bill 2:

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