As the United States Supreme Court issues its decisions from the October 2015 Term, we at Gerhardstein & Branch anxiously await the Court’s decision in Whole Women’s Health v. Hellerstedt, a case involving abortion providers in Texas. In Hellerstedt, abortion providers are challenging H.B.2, a Texas law that requires doctors to obtain admitting privileges at local hospitals and to upgrade facilities to hospital-like standards. On its face, these may sound like reasonable health and safety measures. They are not. Whole Women’s Health and other abortion providers are arguing that the law imposes an undue burden on women’s right to obtain an abortion without providing any real health and safety benefit. If fully implemented, the number of clinics in Texas would be reduced from 44 to less than 10. The Fifth Circuit Court of Appeals upheld the law, concluding that the extended wait times and increased cost and travel times would not constitute an undue burden on Texas women.

Laws like the ones at issue in Hellerstedt are commonly referred to as Targeted Regulation of Abortion Provider (TRAP) laws. TRAP laws place burdensome and unnecessary regulations on abortion providers. Typically these laws provide no health and safety benefits and compliance is expensive and difficult. They are not really intended to improve health outcomes which are already very positive among existing abortion providers. Rather, the laws are intended to drive doctors out of practice and make abortion care more expensive and difficult to obtain. TRAP laws are being passed in states all over the United States, including Ohio.

The Court’s decision in Hellerstedt could have an important impact on abortion providers in Ohio. Like Texas, Ohio has a number of TRAP laws on the books which make it almost impossible for abortion providers to obtain and maintain their licensure. In Ohio, any facility providing surgical abortions is regulated as an ambulatory surgical facility (ASF). All ASFs are required to contract with a nearby hospital to guarantee that the hospital will accept patients that must be transferred from the clinic to a hospital in the event of medical complications. Like the Texas law at issue in Hellerstedt, anti-abortion activists claim that this law is a simple health and safety regulation. In reality, the law provides no additional protection to patients because hospitals are already required to accept and treat patients that require emergency treatment by a federal law commonly known as EMTALA.

Many abortion providers in Ohio have been unable to comply with the written transfer agreement law because very few hospitals are willing to enter into such an agreement. The majority of hospitals in Ohio are religiously affiliated and are opposed to abortion on principle. Others face intimidating tactics and pressure from anti-abortion groups. Furthermore, Ohio law also prohibits all public hospitals from entering into a written transfer agreement with an abortion provider. Gerhardstein & Branch has brought several lawsuits on behalf of Ohio abortion providers challenging the constitutionality of the written transfer agreement law, including the ongoing case Planned Parenthood Southwest Ohio Region v. Hodges, No. 1:15-CV-568 (S.D. Ohio).

It is always unclear how the Supreme Court will ultimately land on any particular case. However, with the current vacancy on the Court, the outcome is even more inscrutable than usual. If the Court’s liberal justices can convince a more centrist member of the Court that Texas’s TRAP law is an undue burden on abortion providers and women, the law will be struck down. Depending on the Court’s reasoning, the court currently considering Ohio’s written transfer agreement law could rely on the decision to find Ohio’s statute unconstitutional.

If, on the other hand, the Court splits four-four, the Court will likely issue a nonbinding decision affirming the Fifth Circuit’s decision upholding the Texas TRAP law. (Even this is unclear, however, as some have speculated that the Court would instead schedule the case for reargument once the vacancy is filled. See Tom Goldstein, Tie votes will lead to reargument, not affirmance, SCOTUSblog (Feb. 14, 2016, 3:14 PM), http://www.scotusblog.com/2016/02/tie-votes-will-lead-to-reargument-not-affirmance/). A split decision would not have an immediate impact on Ohio’s abortion providers. However, it would allow Texas to move forward with shutting down the remaining abortion providers in that state, leaving Texas women with the choice of traveling hundreds of miles to reach a provider or perhaps seeking other more dangerous means of terminating their pregnancies. Furthermore, even though the Fifth Circuit decision is not binding on other circuits, courts could still cite the opinion in support of a decision upholding a TRAP law.

Authored by Ashley Pannell, Gerhardstein & Branch Law Graduate

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