On September 10, 2018, the Eighth Circuit in Comprehensive Health of Planned Parenthood Great Plains v. Hawley (No. 17-1996) smacked the district court for entering a preliminary injunction against Missouri regulations that are designed to improve the safety of abortion surgery. The district court had applied like a blunt instrument the Supreme Court’s latest pronouncement on the subject striking down similar Texas regulations in Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, as revised (June 27, 2016). The Eighth Circuit chided the district court that Hellerstedt requires a much more focused analysis based on specific fact-finding.
The Eighth Circuit provides an opportunity for the Missouri Attorney General’s office to do a better job in supporting its regulations than the Texas Attorney General’s office did supporting its state’s regulations. Involved in both cases are regulations requiring abortion clinics to meet various surgical center health and safety requirements. In Hellerstedt, the abortion clinics made great hay out of the fact that the Texas regulations required several of the few abortion clinics operating in the state to cease operations and, when that occurred, many women were hundreds of miles away from any operating clinic, arguing from that fact that the regulations were an “undue burden” on their access to abortion services.
Texas, by trying to address this argument on its own feet, missed a crucial point. The Supreme Court has held that a woman may have a right to have an abortion in certain circumstances, but, as the Supreme Court has also held, a woman does not have a right to force anyone to perform an abortion or to have anyone else pay for it. Thus, the proper question about access was not how many operating abortion clinics there were in Texas, but how many facilities actually or potentially could perform abortions. A quick web site search discloses that there were literally hundreds of hospitals and surgical centers scattered throughout Texas that could have performed abortions consistent with the challenged regulations. It was not the regulations that placed an undue burden on access to abortion services, then. It was the failure of people desiring abortion access to convince qualifying institutions to perform them. That is not an “undue burden” that rests on anyone’s shoulders but those desiring abortions.
Missouri in defending its regulations fostering the safety of facilities performing abortions should point out, as part of its factual case, not just how many facilities in the state that currently perform abortions could do so consistently with those regulations (or could get a waiver from minor requirements, as the Eighth Circuit points out). It is also relevant, even crucially so, how many facilities in the state could perform abortions consistently with those regulations if they desired to do so. That is the access that counts for constitutional purposes.