Analysis Law and Policy

Fifth Circuit Upholds More HB 2 Provisions, Dares the Supreme Court to Step In

Jessica Mason Pieklo

The decision to uphold the ambulatory surgical center provisions of HB 2 seems designed to bait the Roberts Court to take on another major abortion case.

Read more of our articles on Texas’ omnibus anti-abortion law here.

If there was any lingering doubt that the conservative judges on the U.S. Court of Appeals for the Fifth Circuit are downright daring the Supreme Court to take another major abortion case, one read of Tuesday’s decision allowing even more terrible provisions of HB 2 to take effect should put such hesitation to rest.

The Roberts Court is already considering taking up a different abortion rights case from the Fifth Circuit that arguably conflicts with this week’s opinion. I’ll get to that conflict in a minute. But first, I think the question all reproductive rights advocates need to ask is whether the Fifth Circuit’s decision Tuesday muddied the waters on undue burden analysis intentionally in the hopes that the Supreme Court will step in, making the landscape of abortion rights access even more treacherous to patients than it currently is.

My vote is: Yes, it did.

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Texas and HB 2 have provided the staging ground for one of the religious right’s most aggressive attacks on legal abortion—in large part because of a belief, proven true with decision after decision, that there was no restriction on abortion rights the conservative Fifth Circuit wouldn’t bless. Mandatory ultrasounds? No problem. Admitting privileges requirements? You bet.

The result has been devastating for the people of Texas, with a flood of clinic closures across the state and anti-choice lawmakers lining back up to pass even more restrictions to squeeze access even tighter. With each Texas decision putting more facilities in danger, the Fifth Circuit danced around the question of just how far was too far for a patient to travel to access abortion care. Was 150 miles too far? What if the roads were flat and lightly traveled, the Fifth Circuit justices asked. Would that make a difference?

No it would not, decided the Fifth Circuit.

Then Mississippi happened. While Texas anti-choice lawmakers were jamming HB 2 through in special session, Mississippi lawmakers had already passed their version of a targeted regulation of abortion provider (TRAP) law, with the express purpose of closing down clinics. But unlike in Texas, Mississippi’s TRAP law threatened to leave the state without a single open abortion clinic. The Fifth Circuit ruled in Jackson v. Currier that Mississippi could not target the state’s only clinic for closure and that it would be an undue burden to force patients to have to cross state lines in order to access care.

This is the Mississippi abortion rights case the Roberts Court is currently weighing stepping into.

But on Tuesday the Fifth Circuit backtracked on Currier, or at least it appeared to. This may be enough to compel the Roberts Court to get involved. When reversing the lower court’s ruling that prevented HB 2’s ambulatory surgical clinic (ASC) provisions from applying to the only abortion clinic in El Paso, the Fifth Circuit ruled it would be perfectly acceptable to make patients travel to New Mexico to get care. Unlike Mississippi, the Fifth Circuit ruled, Texas here “has not completely shunted its responsibility onto other states,” the court wrote. “H.B. 2 does not result in the closure of all abortion providers in the state: at least eight ASCs will continue to provide abortions in Texas.”

Of course, none of the clinics that can comply with the ASC requirements—and, therefore, stay open—are located along Texas’ southern border. But because the City of El Paso borders Santa Theresa, New Mexico, which has an abortion provider, that is good enough as far as the Fifth Circuit is concerned. “Unlike the city of Jackson, Mississippi, which is 175–200 miles from the borders of Tennessee and Louisiana, the evidence in this case shows that El Paso and Santa Teresa are part of the same metropolitan area, though separated by a state line, and that people regularly go between the two cities for commerce, work, and medical care,” the court wrote.

What about those Texans living along the approximately 700 miles of its southern border and for whom crossing into Mexico to access abortion care is closer and more realistic than traveling to New Mexico? For those Texans the Fifth Circuit offers a shrug. “We note that this analysis would likely be different in the context of an international border, and we disclaim any suggestion that the analysis here applies to a city across an international border from a United States city in question,” the court wrote.

So let’s summarize here. The Fifth Circuit said in Planned Parenthood v. Abbott that a couple of hundred miles within a state is not too far to travel for an abortion. Then it said in Jackson v. Currier that if those couple of hundred miles forces a patient to travel out of state, then it is too far. But then Tuesday, it ruled it was perfectly fine to make Texans travel out-of-state to access abortion care. Travel across the border to Mexico, however, is a different question. On that, the Fifth Circuit punted.

If you’re confused, you should be. When read together, the Fifth Circuit’s recent decisions make no sense, if what you’re looking for is a clear and precise statement of the law as to how far is too far to travel before a regulation becomes an undue burden. They only make sense if what you’re looking for is a trail of crumbs to entice the conservatives on the Roberts Court to follow the Fifth Circuit’s lead and offer legal cover for abortion restrictions nationwide.

Reproductive rights advocates in Texas have said they will file an emergency appeal of Tuesday’s decision with the Roberts Court, which is exactly what they have to do as advocates to vigorously defend Texans from this latest attack on abortion rights. And while the chances the Roberts Court takes up any emergency appeal are slim, it’s clear the Supreme Court is going to have to answer, sooner or later, just how far states can force patients to travel to access abortion care. The conservative Fifth Circuit is going to make sure of it.

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