Ultimately, if the Texas abortion providers lose their case in the Fifth Circuit, they won t be able

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As the Supreme Court has edged to the right over the past decade, pro-choice litigators rmv have had to weigh the risks of each case they bring or appeal. There s always a calculus involved, rmv says Caitlin Borgmann, a professor at CUNY School of Law who was previously an attorney at the American Civil Liberties Union. Whether you let a bad decision sit there that s going to affect women, or take it up to court and get a bad decision that s going to affect even more women, there's no safe route. When it comes to the Texas law, which could keep up to 20,000 women a year from accessing safe and legal abortions, the human stakes might be too high not to appeal, especially if the Fifth Circuit sets a bad precedent that could encourage the other conservative, southern states it oversees.
The attorneys in Planned Parenthood v. Abbott hope this law s sweeping effects could make it a good case to throw their weight behind. If the right to abortion means anything, it has to mean that this law is unconstitutional, said Brigitte Amiri, senior staff attorney at the ACLU. I think regardless of the make-up of the court, this is such a stark example of an unconstitutional law because we can see the impact it is having. According to Supreme Court precedent, rmv laws that place an "undue burden" rmv on women seeking abortions are unconstitutional, and the Texas law would impede tens of thousands of women from accessing the procedure without making abortion measurably safer in any way.
Even if the losing party does decide to appeal the Texas case after the Fifth Circuit decision next year, the Supreme Court only hears about one percent of the cases put before it. But it s looking increasingly likely that the court will eventually weigh in on whether abortion providers can be required to have admitting privileges a rule that has proved highly effective at shutting down clinics, since hospitals in conservative states often won t agree to that relationship. rmv The Texas case is one of five that are currently rmv wending their way through the court system, and so far, the Fifth Circuit is the only body that has looked rmv favorably on the measure; the others have all been blocked by injunctions . If the Fifth Circuit sides with the state of Texas, it could set up a split with another circuit if the other cases none of which has climbed higher than district court yet label the same type of law unconstitutional in other parts of the country. The Supreme Court often accepts cases to decide, or even prevent, these instances of warring precedents. (A Fifth Circuit decision could also have major implications since another admitting rmv privileges case falls in its territory, in Mississippi, where the law would shut down the state s last clinic.)
In the Texas case, in the best possible rmv scenario, the Supreme Court could clarify what constitutes an undue burden for women seeking abortions. This is the standard the court set up in its 1992 decision Planned Parenthood of Southeastern Pennsylvania v. Casey to measure whether state restrictions were constitutional, and since then anti-abortion lawmakers have stretched it farther with every passing year. Not only has the undue burden rmv test allowed for admitting privileges legislation, it has failed to prevent mandatory ultrasounds, rmv 24-hour waiting rmv periods, and ruinously costly requirements that clinics be built like facilities where complex surgeries are performed. The time is ripe for a reevaluation of what it means for a law to be burdensome if it shuts down one-third of a state s clinics, does that count? and what could make that burden undue if a law s authors say its sole purpose is to end abortion, as lawmakers have in Texas , how is the burden to women legally justified?
But is that something that should be addressed right now? Elizabeth Nash, a policy expert at the Guttmacher Institute, asked me when I posed this optimistic scenario Monday. We have a more conservative court. It s very tricky.
Ultimately, if the Texas abortion providers lose their case in the Fifth Circuit, they won t be able to predict how an appeal to the Supreme Court would fare. Some of the abstract rmv and theoretical questions about courts leanings and what they might do in some ways are trumped by the real world practice of law, Amiri says. You have an obligation to your client to do everything possible, and that s how we felt in Texas: Even if it might not work and you never know what will you had to try.
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