Texas TRAP Law Upheld

Through § 9, the State would prohibit the most commonly used abortion procedure in the country and one that is safer, with respect to maternal mortality, than even the continuation of pregnancy until normal childbirth, and would force pregnancy terminations by methods more dangerous to the woman's health than the method outlawed. As so viewed (particularly since another safe technique, prostaglandin, is not yet available) the outright legislative proscription of saline amniocentesis fails as a reasonable protection of maternal health. As an arbitrary regulation designed to prevent the vast majority of abortions after the first 12 weeks, it is plainly unconstitutional.

This was but one provision at stake in an early post-Roe (its companion case starting the ball rolling) that the Supreme Court had to decide was legitimate. As noted in the Justice White post, one criticism was that the Supreme Court was setting itself as an "ex-officio medical board" or something.  The argument had some force -- the lower courts had loads of cases where they had to judge medical decisions usually left to the political processes.  The problem is that there is clear evidence of lack of clean hands here -- special rules are put in place for abortion specifically with the clear intent and effect of burdening what is a constitutional right.

Planned Parenthood v. Casey loosen the strings with an "undue burden" test as well as replacing the trimester scheme (only basic medical regulations in the first trimester and only medical related regulations in the second, children and funding treated somewhat differently) with just a viability line.  This as intended open the gates to lots of more regulation, including regulations particularly targeted to abortion providers (TRAP laws).  Such laws under current law are not presumptive unconstitutional (like "invidious" discrimination, sometimes you have to remind people of this fact -- saying it is "constitutional" full stop is like saying pre-Brown segregation laws was such) but can be if an "undue burden" on abortion rights.  "Undue burden" is "shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus."  The "effect" part is of particular importance and the same duo concern was cited in the Windsor ruling striking down the federal DOMA.

The test should have some teeth and various lower court rulings did strike down some laws.  SCOTUS (as seen at Oyez.com) dealt with a couple laws by per curiam, but only two cases really applied the new rules. Two different courts, depending on if O'Connor was there, struck down/upheld barriers to a particular abortion procedure without a health exception.  The latter case left open as applied challenges if health could be shown to be seriously threatened. The other case made sure a state law involving parental notification did not have an exception for emergencies.

The current slew of TRAP laws, abortion a prime target for Republican legislatures that for whatever reason are found in a majority of the states (a depressing thought we are sometimes reminded of when these things or voting rights matters come to the fore ... and ACA battles) though by now you would figure they would have run out of new options. Nah.  We have 72 hour waiting periods, ultrasound laws and various laws veiled as health measures that overwhelm clinics with asinine requirements that would have in another day repeatedly been struck down.  Much harder these days and the fact the justices stayed part of a Texas law is pretty notable though really of limited value.

Said law was basically upheld the other day in a per curiam ruling, it being unsigned something of an insult to injury.  The effects this has in respect to real life access to what is after all currently a constitutional right of some importance is suggested by this:

The only remaining legal abortion providers in Texas are located in Houston, Austin, San Antonio, and the Dallas-Fort Worth area, with no legal abortion providers able to provide care in the half of the state that lies west of Interstate 35.

Texas has a population of 27 million and has the highest percentage of uninsured adults in the country.

A person in the comments to one of those links noted this will lead to people dying, which a reply noted is thankfully not likely given illegal methods (including abortion drugs, I gather) are safer.  The reply thought the increase of "more children needing state assistance, often unwanted and potentially neglected children" was the more notable concern. Perhaps, but sadly, I'm not convinced the law will not lead to some deaths, and some unnecessary harm to women's health, use of illegal abortion pills and so forth not foolproof.  And, the result will lead to some horror story that will be used by anti-abortion choice groups, very tear-eyed, as proof that abortion is just so unsafe and more regulations are needed.

One issue here, which helped to lead another court to strike down some comparable provisions, is that the law will basically require many women to go out of state (or country, I gather, in border areas -- fear not! Mexico allows abortions in various cases).  This was cited as a reason the law was not an "undue burden" in that case but (such as was the case back in the day regarding integrated law and graduate schools) the court held that each state has an obligation to protect constitutional rights. A state "may not shift its obligation for established constitutional rights of its citizens to another state."  That is sort of the point of the 14A -- national rights though some seem to miss the point.

The matter will be appealed though the chances they will have in the en banc court as well as the Supreme Court is unclear.

ETA: It's a calculated gambling in regard to appeals in part because a Mississippi law struck down (one clinic in state so might be even more blatant) raises a conflict and is coming up for review (for possible action) by SCOTUS. So, you have a split of some sort and if SCOTUS is interested, they would take it either way.  And,  showing them (particularly swing justice Kennedy) how serious the regulations are can be educational.  OTOH, it's hard to tell, and they have mostly avoided abortion cases except for a federal law with particular emotional valence for years. 

[I think I'm using "valence" right -- when you have a chance to use a word like that, darn, you have to take it.]