New Orleans may be the Big Easy, but trying to convince a three judge panel in the Fifth Circuit that forcing doctors to have admitting privileges to local hospitals infringes on abortion access was anything but.
The judges, who differed from those who originally allowed the Texas law to go into effect by name, but obviously not by ideology, allowed Planned Parenthood, the Center for Reproductive Rights and other abortion providers to state their case that closing numerous clinics — primarily in rural areas with no other option to terminate a pregnancy — infringed on a pregnant person’s constitutional right to have an abortion. Whether or not they had any intention of truly listening to those arguments was another story.
For rural Texans, the enforcement of HB 2 has left them with no option but to travel hours to try to obtain a legal abortion, or find other ways to induce their own miscarriages. A report by Lindsay Beyerstein in Al Jazeera shows that providers in the Lower Rio Grande Valley are reporting hundreds of incomplete miscarriages likely due to ingestion of drugs found on the internet, at flea markets or even across the border in Mexico.
The question before the judicial panel then became a simple one: is this an undue burden on abortion access? Although they did not issue a ruling today, based on questions and statements from the judges, the answer is fairly likely to be “no.”
Here are three of the most outrageous things said by the judicial panel during yesterday’s hearing:
1) “What‘s a little car ride if the roads are good?“ - According to Judge Edith Jones, a Reagan appointee who also declared that a mandatory forced ultrasound delivered with a biased and medically inaccurate script is actually empowering to a pregnant person, a few hours worth of driving shouldn’t be a problem if you really want an abortion.”You know how long that takes in Texas at 75 miles an hour?” the judge asked, according to the Houston Chronicle. “That’s a particularly flat highway.”
There’s a number of problems with this, of course. There will be traffic going into big cities, which are the only ones where doctors can get admitting privileges currently. It ignores the mandatory 24 hour waiting period that makes the trip need to happen at least twice. It ignores those who have to travel more than 150 miles. Most of all, it ignores those who don’t have cars, which is many of the rural poor in the Rio Grande Valley.
2) “If you want a medication abortion so badly, why don’t you just sue?“ – When it comes to medication abortion in Texas, new rules have patients not only needing to take the first pill in the physical presence of a doctor, but also the follow up pill taken 48 hours later. Even after that they are supposed to return again two weeks later for a follow up. Three trips of 150 or more miles should seem extreme, especially considering many clinics send the pill with the patient and urge them to do a follow up with a family doctor closer to home. Despite agreeing that many drugs are commonly used off-label (and specifically mentioning botox as an example), she still proposed that if a person wants a medication abortion, that person should sue for one, rather than the law being stricken all together.
The problem there? Beside the fact that a person shouldn’t have to sue just to exercise a legal right, a lawsuit takes time. Medication abortions, on the other hand, can only be done early in pregnancy. You can see where a problem could occur if pregnant people were forced to sue on a case by case basis. That’s why bad laws are supposed to be enjoined.
3) “Gosnell!“ – There’s a huge amount of irony in any abortion opponent using the Gosnell case as a justification for closing clinics under the guise of making abortion safer. The illegal abortion practice of Dr. Kermit Gosnell in Philadelphia was able to operate primarily by preying on those who didn’t have the money or resources to go to clinics with better doctors, get abortions within the legal limit, or leave the state to go to states that did allow later abortions that were done the medically correct way. Laws like HB 2 close safe, accessible clinics, leading to illegal abortions and unsafe circumstances.
That didn’t stop the panel from invoking the horror of the case when lawyers argued that anti-abortion harassment led doctors to not want to perform abortions. The Center for Reproductive Right’s Janet Crepps noted that Dr. George Tiller was murdered for his work, an event that has scared other providers from stepping in. “And what did Gosnell do?” retorted Judge Jones, according to MSNBC’s Irin Carmon.
Will the panel come back with a reversal of allowing the law to go into effect? Not likely, considering two of the three members already allowed it to be enforced in the first place. The next stop will be the Supreme Court. Hopefully those judges will be less hostile to pregnant people and their constitutional rights.
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