Evil Laws - The Texas Abortion Case

Long ago, in the famous case of Yick Wo v. Hopkins, the Supreme Court wrote that if a law is enacted "with an evil eye and an unequal hand," that law violates the constitution even though it appears on its face to be benign. In that case, the law appeared to regulate the safety of laundries , but was really intended to put Chinese laundries out of business. Years later, a law disenfranchising individuals who had been convicted of crimes of "moral turpitude" was struck down because its purpose was not to promote the integrity of elections but to prevent African-Americans from voting. A law regulating gay and lesbian activities was struck down because there was no conceivable purpose for the law except a hatred of homosexuals. A law regulating religious rituals that was ostensibly based on health and safety concerns was struck down because its real purpose was to outlaw a disfavored religion. And a federal law - the Defense of Marriage Act - that restricted financial benefits to same-sex marriage partners was struck down because it had no legitimate purpose except to condemn homosexuality.

Now there is another example of a seemingly benign law intended for an evil purpose. The Texas abortion statute - popularly known as H.B. 2 - also was enacted under the guise of a legitimate law to promote women's health, but in reality is a transparent attempt to erect onerous obstacles to a woman seeking an abortion. Two provisions of the Texas law stand out. One provision mandates that abortion facilities comply with the exceedingly stringent requirements for ambulatory surgical centers; the second provision requires that any physician performing an abortion have admitting privileges at a hospital located within thirty miles of the place where the abortion is performed. A federal district court struck down the law, finding after a trial and the testimony of numerous witnesses that abortions in Texas are extremely safe and that these provisions would do virtually nothing to reduce the almost nonexistent risks associated with abortion procedures. Ironically, the court found that these provisions would likely create significant additional risks for women seeking abortions by restricting the availability of legal abortion services. Despite these findings, the Court of Appeals for the Fifth Circuit reversed. It held that the Texas law should be given near-total deference, and should be upheld if there is any justification - "any conceivable rationale" - however tortured, tenuous, or evil, for the measure. The Supreme Court last week agreed to hear arguments in the case, Whole Woman's Health v. Cole, and a decision is expected in June.

The impact of the Texas law on women seeking an abortion is already of incalculable severity. Of the 5.4 million women in Texas of reproductive age, more than 60,000 choose to have an abortion each year. Under the Texas law, there would be a net reduction in abortion facilities of more than 75 percent, from 18 to ten. In one of the facilities, because of the admitting privileges requirement, only a single physician out of five is left to perform abortions. Given that almost all of the abortion providers are clustered in four metropolitan areas - Dallas-Fort Worth, Austin, San Antonio, and Houston - there would be no licensed abortion facility west of San Antonio, a region of over 100,000 square miles. Some women would have to travel vast distances to reach an abortion provider, with the attendant transportation costs, child care responsibilities, time off from work, immigration status checkpoints, poverty, physical risks, and other emotional and psychological harms. The Texas legislature was well aware that women who are delayed in obtaining an abortion face greater health risks than those who are able to obtain early abortions because the risks, although minimal throughout pregnancy, increase with gestational age. The purpose of the Texas law, as with so many similar laws throughout the Country, was to end abortions. Rick Perry, then Texas governor, made the point explicitly when the law was passed: "We will continue to pass laws to ensure that abortions are as rare as possible."

If this admission were not enough, the law's pretextual purpose has been exposed by prominent medical groups. The leading national organization of obstetricians and gynecologists criticized the regulations as "overreaching" and "not based on sound science." The Texas Hospital Association cautioned the legislature that the admitting privileges requirement was "not the appropriate way" to ensure high-quality care.

If the Supreme Court applies existing precedent, the Texas law should easily be struck down. In the landmark case of Casey v. Planned Parenthood, the Court observed that while a woman's health or safety was a valid purpose in enacting health regulations, "unnecessary health regulations" that are enacted for the purpose of creating "substantial obstacles" to a woman seeking an abortion impose an undue, and unconstitutional burden on the right to obtain an abortion. The message from the Supreme Court to lower courts was clear and unmistakable; don't rubber stamp laws that are enacted for no legitimate purpose, which express animosity to a woman's right to obtain an abortion, and which are clearly intended to reduce if not eliminate the availability of abortions. The Fifth Circuit evidently didn't get the message, or chose to ignore it.
The Texas law, rubber-stamped by the Fifth Circuit, is a cynical effort to override the protection that Casey v. Planned Parenthood gave to the fundamental liberty of women to obtain an abortion. The Court's constitutional pronouncement in Casey was even lyrical: a woman's decision to obtain an abortion may be one of the most profound choices a woman ever makes in her lifetime, and a decision central to a woman's dignity and autonomy. The Texas law, by contrast, is one of those evil laws that are passed by legislatures from time to time for spurious and illegitimate reasons, and then sustained by a court for equally spurious and illegitimate reasons.
If the Supreme Court upholds the Texas law, many other similar laws enacted by other state legislatures around the Country to make abortions as difficult to obtain as possible - forced ultrasounds, regulations of the dimensions of surgical rooms, longer waiting periods, need for repeat visits, more onerous qualifications of physicians and staff -- will be sustained. When it struck down the Texas consensual sodomy statute in Lawrence v. Texas, the Supreme Court emphasized that a state had to present a very strong interest when it seeks to intrude into an individual's private and personal life. Medically or scientifically unfounded laws, laws based on public morality, and laws that target vulnerable and disfavored groups, or that intrude into a person's private and personal life, are typically the kinds of laws that may are enacted with an "evil eye." The Texas abortion law is one of those evil laws, and should not be allowed to stand.