VICTORY in Texas? What happened in Lakey?

If all else fails, an abortion clinic may stay open regardless of the standard of care provided. Is this the true fallout of the Fifth Circuit’s decision in Whole Women’s Health v. Lakey, a challenge to a new Texas law, HB 2, regulating abortion clinics and providers? A closer look at the details of the decision reveals the good, the bad, and the ugly mess the Fifth Circuit has created.

The Good

In WWH v. LAKEY, abortion providers argued, and the lower court agreed, that the ambulatory surgical center (ASC) regulations imposed by HB 2 were unconstitutional on their face. The Fifth Circuit reversed, upholding the authority of the Legislature to establish regulations reasonably related to protecting the health and safety of women. The decision also lends support to other state legislatures that have enacted or are considering similar legislation.

An El Paso abortion clinic also brought an as-applied challenge. The El Paso clinic does not meet the ASC requirements and the abortionists’ admitting privileges were revoked when the hospital learned that the doctor was an abortionist. This clinic argued that HB2 is unconstitutional as applied to it, because, if forced to comply, the clinic would have to close.

The Fifth Circuit denied the as-applied challenge because women could easily travel twelve miles across the state line to the abortion clinic in Santa Teresa, New Mexico, to obtain an abortion, even though the closest in-state abortion clinic is 550 miles away. This holding contradicts the Fifth Circuit’s own holding in Jackson Women’s Health Organization v. Currier, which struck down an AP requirement because it would close Mississippi’s only abortion clinic thus requiring residents to travel across state lines up to 275 miles to Louisiana, Arkansas, Alabama, or Tennessee to obtain an abortion. The Court distinguished Currier on the grounds that the out-of-state alternatives in Mississippi were hundreds of miles away, while in El Paso, women would only have to drive to the other side of a single metropolitan area, a trip residents routinely made anyway. (Currier itself is currently on appeal to the U.S. Supreme Court. The justices convened yesterday to discuss whether the Court should review the case. A decision is expected on Monday, June 15, 2015.)

The Bad

But the Lakey decision does not end with this victory. The Circuit went on to enjoin enforcement of both the AP and the ASC regulations of HB 2 as applied to an abortion clinic in McAllen, Tex. The McAllen abortion clinic does not meet the ASC requirements and none of its abortion providers have admitting privileges at a hospital within 30 miles of the clinic. The clinic challenged HB 2 arguing that it is unconstitutional as applied to itself because, if forced to comply, the clinic would have to close. Although the Court clearly stated that the ASC and the AP are reasonable, facially constitutional, and do not unduly burden a woman’s choice to obtain an abortion, the Fifth Circuit went to great lengths to allow the McAllen clinic to stay in business despite its inability to comply with valid health and safety regulations.

The Fifth Circuit relied heavily on the distance that would need to be traveled to obtain an abortion if the McAllen clinic closed (235 miles). Although the Supreme Court in Planned Parenthood v. Casey suggested that distance alone can never constitute an undue burden, the Lakey court skirted this argument making a very vague reference to the district court’s findings, based on multiple layers of hearsay, that women faced “practical concerns” suggesting they would be unable to make the trip to San Antonio or Houston.

While citing prohibitive costs as the excuse for the McAllen clinic not complying with the ASC requirement, the Court offers no reason why the McAllen clinic should be exempt from the AP requirement. The McAllen clinic claimed that all of its abortionists were denied admitting privileges to local hospitals “for reasons other than their competence,” but that does not mean that these doctors were not denied privileges on some other vital basis such as fraud or prior criminal conviction. Nor does this excuse take into account the other primary purpose for the AP requirement, i.e., ensuring continuity of care to women who have a medical emergency following an abortion.

Moreover, the lack of abortionists with admitting privileges at a nearby hospital is not a direct result of the AP law itself posing an obstacle. There is no shortage of doctors who are legally qualified to do abortions; there is a shortage of qualified doctors who are willing to do abortions.

The Ugly

The Fifth Circuit’s ruling and rationale in Lakey, particularly its treatment of the McAllen clinic, leave several troubling implications that could impact the future of similar health and safety abortion regulations. The purpose of these regulations is to improve the quality of care provided to women and to impose the same safety regulations on abortion providers as other medical professionals. If all that is needed to obtain an exemption is for an abortion clinic to claim that it cannot financially afford to comply, the law become toothless.

Furthermore, what happens in circumstances where the lone abortion clinic in a state or large geographical region faces closure due to violations of existing regulations? Does the regulatory department simply overlook the violations because the effect of enforcement would result in closing the clinic? The administrative failure to enforce statutes and regulations is what kept notorious abortionists and serial murderer Kermit Gosnell in business.

What happens in circumstances where the lone abortion clinic in a state or large geographical region faces closure because the abortionist faces license revocation by the Board of Medical Examiners (BME) for improper conduct? Does the BME turn a blind eye to the misconduct because the effect of enforcing the regulations against an abortionist would result in closing the abortion clinic? Again, paging Dr. Gosnell.

What happens where the lone abortion clinic in a state or large geographical region faces closure because there are no doctors willing to perform abortions? Can the State be compelled to allow non-physicians to perform abortions, as some states already do?

We do not exempt hospitals or schools from traditional health and safety regulations simply because it is financially difficult for them to comply with the law. Why are the courts exempting the abortion industry from basic health regulations enacted to protect women? Is the real “war on women” in fact the “abortion at any cost” mentality?