January 14, 2014
by Cullen Archer
On January 6, 2014, the Court of Appeals for the Fifth Circuit heard arguments on the merits regarding Texas House Bill 2 (“HB2”). The two provisions of HB2 at issue are: (1) requiring a physician performing or inducing an abortion to have admitting privileges, on the date of the procedure, at a hospital no more than thirty miles from the location at which the abortion is performed or induced; and (2) limiting the use of abortion-inducing drugs to a protocol authorized by the United States Food and Drug Administration (FDA), with limited exceptions.
The Second Called Session of Texas’ 83rd legislature passed HB2 on July 12, 2013, just three weeks after a filibuster extended past the deadline of the First Called Session and delayed a vote on its predecessor. Planned Parenthood of Greater Texas Surgical Health Services and other abortion facilities and providers sued Abbott, the Attorney General for the State of Texas, and others seeking to enjoin enforcement of HB2. Rather than hear the request for preliminary injunction, the District Court consolidated the request with a trial on the merits.
At trial, Planned Parenthood asserted that both provisions were unenforceable because they failed constitutional review. Addressing the provision requiring hospital admitting privileges, the court applied the two-prong undue burden test. This first prong subjects a regulation to rational-basis review to determine whether the law's purpose or effect is rationally related to the state's legitimate interest balanced with the woman's interest. If a law survives the first prong, the second prong analyzes whether the state's purpose is to hinder autonomous reproductive choice, distinct from a rational-basis analysis. Regulations imposing an “undue burden” on women seeking previability abortion services are unconstitutional.
The State argued that the interests served by the statute were (1) making the provider more likely to effectively manage patient complications by providing continuity of care and decreasing the likelihood of medical errors, especially related to physician communication and patient handoff; (2) addressing issues of patient abandonment, hospital costs, and accountability; and (3) improving treatment once an abortion patient is at the hospital. Finding the State’s interests unsupported by evidence or simply unconvincing, the District Court concluded that admitting privileges had no rational relationship to improved patient care or protecting the newborn and held that the hospital admitting privileges provision failed rational-basis review.
Continuing its analysis, the court explained that even if rational basis were found, the provision would still fail because the hospital admitting privileges provision places an “undue burden” on a woman seeking abortion services in Texas. Citing evidence that abortion clinics would close by requiring abortion providers to have hospital admitting privileges, the court found HB2 necessarily had the effect of presenting a “substantial obstacle” to access to abortion services. Evidence also demonstrated that abortion providers who obtained admitting privileges at local hospitals would likely not meet the hospitals’ minimum threshold number of admissions or surgeries required to maintain privileges.
Regarding the use of misoprostol and mifepristone for medical abortion, the court explained that abortion providers had long been using the FDA protocol or an off-label protocol endorsed by the American Congress of Obstetricians and Gynecologists (“ACOG”), which had “become the de facto standard of care in Texas. The ACOG protocol changes the route of administration from oral (swallowing the medication) to buccal (absorption through the internal mucosa of the cheek), lowers the dosage, adds an antibiotic, allows for at-home administration, and can be used up to 63 days gestation. HB2 allows continued use of the FDA protocol and the ACOG-endorsed lower dosage but not the ACOG-endorsed buccal administration nor at gestational ages past 49 days. The parties agreed that an off-label protocol-based dosage of mifepristone taken out of the context of the rest of the protocol was untested, might lead to unpredictable results, and was unlikely an acceptable standard of care. The court found that the FDA protocol was more burdensome to a woman than the off-label protocol but explained that “the incidental effect of making it more difficult or expensive to obtain an abortion cannot be enough to invalidate the statute.” Although the court did not consider whether the risk of surgical abortion exceeds the risks of medical abortion, the court held that for most women, HB2’s restriction on medical abortion did not rise to the level of an undue burden, given the “reasonable alternative procedure” of surgical abortion. However, the court concluded that the medication-abortion provision of HB2 was an undue burden on women for whom surgical abortion is, in the medical opinion of their treating physician, a significant health risk during the period of pregnancy falling between 50 and 63 days gestational age.
The district court enjoined enforcement of the admitting-privileges provision, holding that HB2 did not bear a rational relationship to the legitimate right of the State in preserving and promoting fetal life or a woman's health and “places a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus and is thus an undue burden to her.” Additionally, the court held that the medication-abortion provisions do not generally place an undue burden on women seeking an abortion. However, the court identified an undue burden created when the provisions ban a medication abortion when, in the physician’s appropriate medical judgment, such a procedure is necessary to preserve the life or health of the mother and enjoined enforcement of the provisions in that instance.
Texas appealed the district court’s decision. On October 31, 2013, the Fifth Circuit granted the State’s motion to stay the injunction pending appeal because, inter alia, the court concluded that the State had made a strong showing that it was likely to succeed on the merits of HB2’s hospital admission privileges provision and medical abortion provision. Reviewing the hospital admission privileges provision, the Circuit court considered Texas’ state interest in regulating the medical profession and protecting the profession’s integrity and ethics.
Regarding the district court's conclusion that a State has no rational basis for requiring physicians who perform abortions to have admitting privileges at a hospital, the Fifth Circuit opined that the district court's conclusion was one step removed from repudiating Supreme Court precedent that a State may constitutionally require that only a physician may perform an abortion. The court did not comment on the usual practice of physicians performing other office-based surgery when those physicians do not hold concurrent hospital admitting privileges. Just because a physician has admitting privileges at the hospital where she sends her patient does not necessarily mean that the physician will choose to assume care for her patient once the patient arrives at the emergency department (“ED”). Absent medical staff bylaws to the contrary, a physician who sends a patient to the hospital ED where the physician has admitting privileges may choose to let the ED physician assume care and consult the on-call Obstetrician/Gynecologist. Additionally, simply because a physician has admitting privileges at a hospital does not necessarily mean that the physician will choose to send her patient to the hospital where she has admitting privileges. More importantly, if a physician performing an office-based abortion has a complication and patient experiences a life-threatening emergency, a prudent physician would call 911 and Emergency Medical Services, per their usual protocol, would transport the patient emergently to the nearest hospital in time. That hospital is not necessarily the hospital at which the physician has admitting privileges.
Acknowledging that the hospital admitting privileges provision applies to any physician who performs an abortion in Texas, the court concluded that every woman in Texas who seeks an abortion would be affected to some degree. Although the district court found that 24 Texas counties would be left without an abortion provider, the circuit court found that 90% of women seeking an abortion in Texas would still be able to obtain an abortion from a physician within 100 miles of their residences. Similar to a statutory waiting period, the court held that a 100-150 mile distance of travel was not an undue burden on abortion rights.
Finally, the 5th Circuit considered the likelihood of success on the merits as related to the State’s appeal pertaining to medical abortions. The court identified the most significant difference between the FDA and ACOG protocols as the gestational age limit for which a medical abortion could be performed. The State challenged the district court’s decision to create a health exception to HB2. Texas argued that the state may limit medication use to FDA protocols, these patients would have access to medical abortion up to 49 days gestation, and there was no need for the exception when HB2 already provides an exception when “abortion is necessary to avert the death or substantial and irrevocable physical impairment of a major bodily function of the pregnant women.” Although the court did not conclude that the State had made a strong showing of a likelihood of success on the merits, it did agree with the State that the “health exception” imposed by the district court is broader than necessary to remedy the undue burden found by the district court.
The U.S. Supreme Court denied Planned Parenthood’s emergency application to vacate the stay. Speaking for the majority, Justice Scalia explained that the Court may not vacate a stay entered by a court of appeals unless it clearly and demonstrably erred in its application of accepted standards and upheld the circuit court’s ruling. Dissenting Justices Breyer, Ginsburg, Sotomayor, and Kagan noted that the underlying question of the law’s constitutionality was a difficult one that at least four Members of the Court “will wish to consider irrespective of the Fifth Circuit's ultimate decision.”
Cullen Archer, Class of 2015 candidate at the University of Utah S.J. Quinney College of Law, graduated from the University of Texas in Austin with a B.A. in Chemistry and the University of Texas Health Science Center at San Antonio with a Doctor of Medicine. He has come to law school after practicing Obstetrics & Gynecology for many years and is focusing his studies on healthcare law. Among other things, he volunteers at the Pro Bono Initiative Medical-Legal Clinic. Archer is also an avid golfer, scuba diver, and antiquarian book collector.
 Act of July 12, 2013, 83rd Leg., 2d C.S., ch. 1, §§ 1–12, 2013 Tex. Sess. Law Serv. 4795–802 (West) (to be codified at Tex. Health & Safety Code §§ 171.0031, 171.041–048, 171.061–064, & amending § 245.010.011; Tex. Occ. Code amending §§ 164.052 & 164.055); Planned Parenthood of Greater Texas Surgical Health Servs. v. Abbott, 734 F.3d 406, 409 (5th Cir. 2013).
 Planned Parenthood of Greater Texas Surgical Health Servs. v. Abbott, 1:13-CV-862-LY, 2013 WL 5781583, *1 (W.D. Tex. Oct. 28, 2013).
 Id. at *2.
 Id. at *1.
 Id. at *3.
 Id. at *4 (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 877 (1992))(determining whether law places “substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”).
 Abbott, 1:13-CV-862-LY, 2013 WL 5781583 at *4.
 Id. (quoting Casey, 505 U.S. at 878-89).
 Abbott, 1:13-CV-862-LY, 2013 WL 5781583 at *4-*5.
 Id. at *5.
 Under the FDA protocol, a patient up to 49 days gestation, takes oral Mifeprex® and misoprostol in the provider’s office on day 1 and day 3, respectively, under conditions allowing witnessed compliance; patient returns on day 14 to verify completion of the abortion. U.S. Food & Drug Admin, Mifeprex (mifepristone) Information, http://www.fda.gov/drugs/drugsafety/postmarketdrugsafetyinformationforpatientsandproviders/ucm111323.htm (last updated July 19, 2011).
 Abbott, 1:13-CV-862-LY, 2013 WL 5781583 at *7 (emphasis in original).
 Id. at *8.
 Id. at *9-10 (citing Casey, 505 U.S. at 874).
 Abbott, 1:13-CV-862-LY, 2013 WL 5781583 at *10.
 Id. at *11.
 Planned Parenthood of Greater Texas Surgical Health Servs. v. Abbott, 734 F.3d 406, 410 (5th Cir. 2013).
 Id. at 411.
 Id. at 412. See, e.g., Mazurek v. Armstrong, 520 U.S. 968, 974 (1997).
 Abbott, 734 F.3d at 414.
 Id. at 415.
 Casey, 505 U.S. at 885–87.
 Abbot, 734 F.3d at 415.
 Id. at 417.
 Id. at 418.
 Planned Parenthood of Greater Texas Surgical Health Servs. v. Abbott, 134 S. Ct. 506, 506 (2013)(citing Western Airlines, Inc. v. Teamsters, 480 U.S. 1301, 1305 (1987)).
 Abbott, 134 S. Ct. at 509.