Summary: The Fifth Circuit Court of Appeals issued a ruling that will close all but eight of Texas’ abortion clinics.
MSNBC reports that on Thursday, the Fifth Circuit Court of Appeals allowed the state of Texas to start enforcement of its new abortion restrictions. Due to the new restrictions, only eight facilities will remain open in the second-largest state in the U.S. Unless the decision is overturned by the United States Supreme Court, the law may have a devastating effect on access to abortions across the nation.
Now, one out of six women in Texas who may want or need abortion services will live over 150 miles from the nearest facility. Previously, a lower court judge ruled that the law was unconstitutional because it “would operate for a significant number of women in Texas just as drastically as a complete ban on abortion.” However, on Thursday, the appellate panel comprised of three judges ruled that the restrictions do not impose an “undue burden” on citizens. The decision is stayed pending the state’s appeal.
Over the last year, roughly half of Texas’ abortion clinics have closed. The closings were due to a separate clause of the law that went into effect. In the present case, the provision ruled upon requires all abortions to occur in ambulatory surgical centers, which are essentially smaller versions of hospitals that can cost over $1 million to build.
Judge Jennifer Elrod, appointed by former president George W. Bush, stated that the district court judge overreached because “in our circuit, we do not balance the wisdom of effectiveness of a law against the burdens the law imposes.” She added, “We do not doubt that women in poverty face greater difficulties.”
Judge Elrod noted that the court had to find that a “large fraction” of women would be impacted by the law. Elrod admitted that 900,000 women in rural Texas were affected by the law. Judge Stephen A. Higginson, appointed by President Obama, noted in a partial dissent that current clinics would have to “increase by at least fourfold the number of abortions they perform annually.”
Nancy Northup, president and CEO of the Center for Reproductive Rights, commented, “Today’s ruling has gutted Texas women’s constitutional rights and access to critical reproductive health care and stands to make safe, legal abortion essentially disappear overnight.” The center represented clinics in the proceedings.
Spokeswoman for the Texas Attorney General’s Office Lauren Bean said in a prepared statement that the “decision is a vindication of the careful deliberation by the Texas Legislature to craft a law to protect the health and safety of Texas women.”
District court judge Lee Yeakel allowed two clinics to open that had closed under an earlier provision that required abortion providers to have admitting privileges at nearby hospitals, but that part of the decision was also blocked by the appellate court. One clinic that had actually reopened due to Yeakel’s decision, Whole Woman’s Health in McAllen, will now be forced to close again.
The law at issue was filibustered by Wendy Davis in June 2013. Texas Governor Rick Perry convened a special session to allow the law to pass. The law also includes an unconstitutional ban for abortions after 20 weeks of pregnancy, and restrictions on medication abortion. The 20-week ban has not yet been challenged in court, however, the 9th Circuit Court of Appeals ruled that a similar law that restricted medication abortions in Arizona defied medical evidence and forced an undue burden on women.
All eight remaining clinics are in major cities. This leaves rural women with very few options, in fact, none south of San Antonio. Planned Parenthood has recently announced new ambulatory surgical centers in Dallas and San Antonio.
Many states, such as Texas and Mississippi, have refused to grant admitting privileges to abortion providers, which makes them unable to comply under the law. Further, ambulatory surgical centers are extremely expensive to build. Neither regulation is promoted or considered necessary by the American Medical Association and other medical organizations. Many organizations argue that these restrictions potentially place women in danger by making legal abortion increasingly inaccessible.
The admitting privilege requirement alone cut Texas’ abortion clinics in half. In just six months, 19 facilities closed. By November 2013, 22 abortion clinics operated in Texas, although the numbers vary depending upon doctors’ statuses.
Many had expected Texas’ attorneys to jump on an appeal immediately after Yeakel’s opinion was handed down, which was the Friday before Labor Day weekend. However, attorneys waited until the last possible minute to file appellate briefs, which frustrated judges. The judges put off ruling on the issue until oral arguments had been heard. This was beneficial to abortion patients in the Rio Grande Valley, who now had several weeks to seek an abortion.
Judge Jerry Smith lectured the state’s attorneys for waiting until the last minute to file a motion: “I’m a little bit perplexed by the way that that was handled by the state. It may appear that I’m just trying to give you a hard time, but I think it really goes to the seriousness of the state’s claim of irreparable harm.”
During oral arguments, Judge Jennifer Elrod said, “We have to look for evidence that women face an undue burden. Just the decrease in the number of clinics doesn’t tell us that women face an undue burden, does it?”
Stephanie Toti, who represented the clinics, repeated testimony from a patient advocate who said that “the obstacles caused by the closure of the two clinics in the Rio Grande Valley were substantial for the women who lived there.”
Unconvinced, Judge Elrod asked, “Well, did she say that women were actually not getting abortions? I think she said she talked to different providers, and to some women, and that there were obstacles…Did she give evidence that they were undue burdens that kept the person from getting an abortion?” In response, Toti stated that the advocate testified that she “personally observed an increase in the number of women turning to illegal, self-induced abortions because of an inability to reach the legal abortion clinics.”
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