Tuesday, June 28, 2016

SCOTUS declares Texas abortion regulations unconstitutional, with considerable discussion of distance and travel--and one little mention of "rural"

The United States Supreme Court yesterday, by a vote of 5-3, declared several parts of Texas H.B. 2 unconstitutional.  The Court struck down the provisions of the Texas law that required abortion providers to have admitting privileges at a nearby hospital and to meet ambulatory surgical center (ASC) requirements.

I have, of course, spilled a lot of ink on this law (Texas H.B. 2, that is) and its construction by federal judges over the past several years, most exhaustively here.  One of my complaints--particularly in the more recent rounds of litigation--is that judges have misunderstood the burdens facing rural women and others who live farthest from the abortion providers who are able to comply with the Texas laws and continue to provide this service.  As a related matter, I have complained that the pro-choice litigants have done little to draw attention to these issues and the media have followed suit, shifting their focus to the number of women crowding the few remaining abortion providers in Texas, causing long waits for appointments that sometimes push women into the second trimester.

In light of all of this, I was delighted today to see several features of the majority decision, authored by Justice Stephen Breyer.   First, Justice Breyer was not only very focused on the facts, he relied heavily on the factual findings of federal district judge Lee Yeakel who had ruled in the fall of 2014 that the Texas law imposed a particular burden on poor, rural women.  Yeakel wrote:
[T]he record conclusively establishes that increased travel distances combine with practical concerns unique to every woman. These practical concerns include lack of availability of child care, unreliability of transportation, unavailability of appointments at abortion facilities, unavailability of time off work, immigration status and inability to pass border checkpoints, poverty level, the time and expense involved in traveling long distances, and other, inarticulable psychological obstacles. These factors combine with increased travel distances to establish a de facto barrier to obtaining an abortion for a large number of Texas women who might choose to seek a legal abortion.
Thus Judge Yeakel talked about a particular combination of obstacles--all exacerbated if not triggered by Texas H.B. 2--that could get in the way of Texas women--especially poor, rural, Texas women--getting an abortion.

Breyer did not quote that passage in its entirety, but he did include (in an opinion joined by Justices Kennedy, Ginsburg, Sotomayor and Kagan) this passage from Judge Yeakel's opinion in Lakey/Cole (the name of the case that litigated the Texas law's ambulatory surgical center requirement):
9. The “two requirements erect a particularly high barrier for poor, rural, or disadvantaged women.” 46 F. Supp. 3d, at 683; cf. App. 363–370.
This is at page 6 of the slip op.  Further, the opinion uses the word "distance" five times and the word "travel" once.  I see this as real progress toward recognizing the role of geography--of spatiality--even though the Court's conclusion (what I see as it's essential holding on the "undue burden" point) was was clear that distance alone was not enough to meet the "substantial obstacle" or "undue burden" test:
We recognize that increased driving distances do not always constitute an “undue burden.” See Casey, 505 U.S., at 885–887 (joint opinion of O’Connor, KENNEDY, and Souter, JJ.). But here, those increases are but one additional burden, which, when taken together with others that the closings brought about, and when viewed in light of the virtual absence of any health benefit, lead us to conclude that the record adequately supports the District Court’s “undue burden” conclusion.
This is from page 26 of the slip op. I'll write more in a future post on why I think the majority was equivocal here about the burden of distance--basically that Justice Kennedy (along with Justices O'Connor and Souter) did not recognize the burden of distance as an undue burden in Casey

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