Recently, federal judges in the 5th Circuit ruled that requiring that an abortion provider in Mississippi have admitting privileges to a local hospital was an undue burden to the constitutional right to terminate a pregnancy prior to viability. The ruling, although welcome, still had many reproductive rights advocates concerned since the basis of the decision was that if admitting privileges were required, it would close the only clinic in the state, making it impossible to access an elective abortion in Mississippi.
Now, a new judge has ruled that admitting privileges is still an undue burden on the right to an abortion, even if more than one clinic is left open in the state. “Indeed, the court is convinced that, if this requirement would not, in the face of all the evidence in the record, constitute an impermissible undue burden, then almost no regulation, short of those imposing an outright prohibition on abortion, would,” wrote U.S. District Judge Myron Thompson, who argued that the law would close all but two clinics in the state, as providers found it too difficult to find local hospitals that would offer admitting privileges due to the history of violence against abortion providers in that state.
Hospitals in the state that would potentially consider offering privileges have a right to be concerned about becoming targets if they did so. Anti-abortion advocates in the state already threatened to campaign against one Huntsville hospital for offering privileges to an abortion provider, threatening it with pickets if they didn’t fire the provider on their staff. There would be little doubt that others would be the subject of similar protests if they were seen as aiding an abortion clinic in remaining open and operational.
The ACLU, which was representing the clinics in question in this suit against the admitting privileges portion of HB 57, applauded Judge Thompson’s ruling. “As the judge noted today, the justifications offered for this law are weak at best,” said Louise Melling, deputy legal director of the ACLU via press release. “Politicians, not doctors, crafted this law for the sole purpose of shutting down women’s health care centers and preventing women from getting safe, legal abortions.”
While Alabama’s court is coming to a reasonable decision about what limits in available clinics means when it comes to truly having the right to an abortion, courts in Texas are still fighting tooth and nail to claim that closing off clinics is a matter of patient safety versus an attempt to drastically limit the ability to terminate a pregnancy. While a different panel of 5th Circuit judges already ruled that admitting privileges aren’t an undue burden in Texas, abortion providers in the state are making one last stand to keep a few more clinics open by challenging the rule that abortions can only be performed in ambulatory surgical centers (ASCs), which most clinics are not equipped as, and it could cost many as much as a million dollars to come up to code.
“The ASC requirement takes effect Sept. 1 and mandates that clinics have specific room and doorway sizes, along with locker rooms and infrastructure such as pipelines for general anesthesia,” reports the Texas Tribune. “It’s the last remaining provision to be implemented after the passage last year of House Bill 2, which began to take effect in October.” If the regulations go into place, many independent providers will be shuttered, either due to lack of funds to rebuild their clinics or to purchase new buildings for those who lease their current offices.
With just six clinics likely to remain open in the state of Texas, almost 1 million women in Texas would be over 150 miles from an abortion provider, and for those who live close to the Mexican border that could be a four hour drive to terminate a pregnancy. The state, meanwhile, argues that the distance isn’t that bad, since “85 percent of Texas women would still live within a three-hour drive of an abortion provider.”
The new Texas trial should continue through Thursday, and the judge hearing the case is the same judge who blocked the admitting privileges rule in Texas citing it an undue burden if clinics closed as a result. Unfortunately, much like his previous ruling, a similar decision would likely be taken up and overturned in appeals. With Texas circuit decisions being so out of step with the rest of the rulings around Targeted Regulation of Abortion Provider (TRAP) bills being blocked across the country, a trip to the Supreme Court for final arbitration is likely inevitable.
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