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Fifth Circuit Upholds the Enforcement of Two Abortion Provisions of a Texas Act – Whole Woman's Health v. Lakey

Published online by Cambridge University Press:  06 January 2021

Cristina Cahn-Speyer
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American Journal of Law & Medicine , Volume 41 , Issue 1 , March 2015 , pp. 210 - 213
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Copyright © American Society of Law, Medicine and Ethics and Boston University 2015

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References

1 Whole Woman’s Health v. Lakey, 769 F.3d 285 (5th Cir. 2014).

2 2013 Tex. Gen. Laws 5013 (codified as amended at Tex. Health & Safety Code Ann. §§ 171.0031, 245.010(a) (West Supp. 2014)).

3 Whole Woman’s Health, 769 F.3d at 289.

4 Id. at 292.

5 Whole Woman’s Health v. Lakey, 135 S.Ct. 399 (2014).

6 See Rozen, Miriam, Heated Hearing in 5th Circuit Abortion Case, Tex. Law. (Jan. 8, 2015)Google Scholar, http://www.texaslawyer.com/id=1202714460182/Heated-Hearing-in-5th-Circuit-Abortion-Case?slreturn=20150304181955.

7 House Bill 2, Tex. Legis. Online Hist., http://www.legis.state.tx.us/BillLookup/History.aspx?LegSess=832&Bill=HB2 (last visited Apr. 4, 2015).

8 Tex. Health & Safety Code Ann. § 171.0031 (West Supp. 2014).

9 Tex. Health & Safety Code Ann. §§ 245.010, 243.010 (West Supp. 2014); see also Whole Woman’s Health, 769 F.3d at 290 (requiring two main categories: (1) physical plant, which requires architectural, electrical, plumbing, and HVAC and (2) operations, which includes medical record systems, training, staffing, and cleanliness).

10 Whole Woman’s Health, 769 F.3d at 292.

11 Whole Woman’s Health, 2014 U.S. Dist. LEXIS 124500, at *6. In 2013 the plaintiffs, acting on behalf of abortion providers in Texas and their patients, brought an action against the state of Texas. Whole Woman’s Health v. Lakey, No. 1:14-CV-284-LY, 2014 U.S. Dist. LEXIS 124500, at *3 (W.D. Tex. Aug. 29, 2014). The plaintiffs only challenged the admitting-privileges requirement as applied because, in a separate case dealing with Texas House Bill 2, the Fifth Circuit held the requirement facially constitutional.Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 748 F.3d 583, 587 (5th Cir. 2014).

12 Id. at *4–*5.

13 Id. at *35.

14 Id.

15 Whole Woman’s Health, 769 F.3d at 288-89.

16 Gonzales v. Carhart, 550 U.S. 124 (2007).

17 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992).

18 Whole Woman’s Health, 769 F.3d. at 293.

19 Id. at 294.

20 See id. (observing that a challenged law surmounts rational basis when it is rationally related to a legitimate state interest); Whole Woman’s Health, 2014 U.S. Dist. LEXIS 124500, at *10.

21 Whole Woman’s Health, 769 F.3d at 295.

22 See id. at 294 (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 877 (1992))

23 Id. at 296 (citing Planned Parenthood of Se. Pa., 505 U.S. at 895 (emphasis added)).

24 Whole Woman’s Health, 769 F.3d at 296 (internal quotations omitted); Whole Woman's Health, 2014 U.S. Dist. LEXIS 124500, at *18.

25 Whole Woman’s Health, 769 F.3d at 298 (“Even assuming, arguendo, that 150 miles is the relevant cut-off, this is nowhere near a ‘large fraction'”); see Casey, 505 U.S. at 894 (stating that the denominator of the large fraction should encompass all women for whom the law is a restriction not just the women who will face the undue burden).

26 Whole Woman’s Health, 769 F.3d at 300.

27 Id.

28 Id. at 303.

29 Id. at 302-03 (noting that since the close of the clinic in McAllen, 50% of women went to Corpus Christi, 25% to Houston, 15% to San Antonio, and 10% to a location even farther).

30 Id. at 303-04 (finding that the increased travel time is consistent with Casey because Casey upheld travel times of six hours and here, the travel time is less than that of the women affected by the law in Casey).

31 Id. The court also noted that there is a closer abortion facility to El Paso, just across the state line in New Mexico, but precedent suggests that courts must focus on clinics within Texas when deciding whether the challenged law creates an undue burden. Id. at 304; see also Jackson Women’s Health Org. v. Currier, 760 F.3d 448, 457 (5th Cir. 2014) (holding that “the proper formulation of the undue burden test focuses solely on the effects within the regulating state”).

32 Id. at 304; Jackson Women’s Health Org. v. Currier, 760 F.3d 448, 457 (5th Cir. 2014) (holding that “the proper formulation of the undue burden test focuses solely on the effects within the regulating state”). Whole Woman’s Health, 769 F.3d at 303.

33 Whole Woman’s Health, 769 F.3d at 304 (finding that the physical plant requirements would force the clinic to close but failing to find sufficient evidence that the clinic would not be able to comply with the operational requirements).

34 Whole Woman’s Health v. Lakey, 135 S.Ct. 399, 399 (2014).) (mem.).

35 Id.

36 Id.

37 Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 833-34 (1992).

38 More State Abortion Restrictions Were Enacted in 2011–2013 Than in the Entire Previous Decade, Guttmacher Inst. (Jan. 2, 2014), http://www.guttmacher.org/media/inthenews/2014/01/02/index.html.

39 See generally Jackson Women’s Health Org. v. Currier, 760 F.3d 448 (5th Cir. 2014) (concerning admitting-privileges restrictions); Planned Parenthood of Ariz., Inc. v. Humble, 753 F.3d 905 (9th Cir. 2014), petition for cert. filed, 83 U.S.L.W. 3142 (U.S. Sept. 2, 2014) (No. 14-284) (concerning medical abortion restrictions); Planned Parenthood of Kansas v. Moser, 747 F.3d 814 (10th Cir. 2014) (concerning denial of family planning-funds); Planned Parenthood of Wis., Inc. v. Van Hollen, 738 F.3d 786 (7th Cir. 2013), cert. denied, 134 S. Ct. 2841 (2014) (concerning admitting-privileges restrictions); Planned Parenthood Se., Inc. v. Strange, 33 F. Supp. 3d 1330 (M.D. Ala. 2014) (concerning hospital staff privilege requirement); June Med. Servs., LLC v. Caldwell, No. 3:14-cv-00525-JWD-RLB, 2014 U.S. Dist. LEXIS 121555 (M.D. Ala. Aug. 31, 2014) (concerning admitting-privileges restrictions).