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As Texas Clinics Close, What’s Next for the Courts… and for Women?

As Texas Clinics Close, What’s Next for the Courts… and for Women?

In a devastating blow to access in the second largest state in the country, the 5th circuit ruled late on Halloween evening that almost the entirety of HB 2, the Texas law that is meant to shutter most of the abortion providers in the state, should be allowed to go into effect.

With that decision, over a dozen clinics who had appointments scheduled for as early as the next day were forced to call patients and cancel. Those who were pregnant were forced to look for a new place to get the procedure, rearrange child care or work schedules, find gas money, bus fare or more so they can leave their homes and head to cities that may be hundreds of miles away, book hotels for overnight stays, gather additional funds for potentially later gestation abortions or, in the worst cases, remain pregnant against their wills.

The judges said that it is in their best interest and in no way an undue burden or an infringement on their legal right to an abortion.

“[T]here can be no doubt that the State of Texas has ….an interest in protecting the health of women who undergo abortion procedures,”writes the three judge panel, justifying its decision to let the admitting privileges requirement of the law go into effect despite knowing that it would immediately close many of the clinics in the state. In looking at a subset of the counties of the state, the courts determined that “more than 90% of the women seeking an abortion in Texas would be able to obtain an abortion from a physician within 100 miles of their respective residences even if H.B. 2 went into effect…An increase in travel distance of less than 150 miles for some women is not an undue burden on abortion rights.”

Of course, 100 miles is in fact a substantial burden, even with access to a car and financial means to pay for the gas. The nearly two hours in each direction, added to a 24 hour mandatory waiting period, means as much as eight additional hours to receive a procedure that is supposed to be a legally protected right. And that only addresses the 90 percent within the 100 miles, rather than the one in 10 women outside that zone.

The 5th circuit will pick up this argument again in January, where there will be a full hearing. However, to expect a different outcome at that point is fairly unlikely. By then, there will be two outcomes: either the case will be appealed up to the Supreme Court, where there is a chance it could be overturned, or the Supreme Court could refuse to hear it, leaving the law in place as is and allowing more laws to be passed in other states in the circuit, as well as new challenges on cases currently enjoined in other circuits that did find closing most or all of the clinics in the state to be an undue burden. That means that Alabama and Wisconsin could be in danger of losing most of their clinics, an act that is currently on hold, and potentially North Dakota and Mississippi could be abortion clinic free.

In fact, if the case did get heard by the Supreme Court, that could actually be what the final ruling would decide: how many clinics does a state officially have to have in order to say that abortion is still legal in that state? It’s a question my co-author Jessica Mason Pieklo and I go into in great detail in discussing in our bookCrow After Roe: How ‘Separate But Equal’ Has Become the New Standard In Women’s Health And How We Can Change That,where we plot out the different laws passed as a means of provoking a court challenge to Roe. Although the federal courts at this point seem uncomfortable with closing the only clinic in a state, as would have occurred if admitting privilege laws went into effect in Mississippi or North Dakota, when the question is instead eliminating most, but not all, of those clinics, leaving just one or two behind to serve as lip service to legal, accessible abortion, they may be more willing to bite.

It’s this test that HB 2 in Texas is meant to create, and the 5th circuit has done their part to provoke that challenge. If they can drop the number of clinics in many of the red or plains states, they will create a crisis of access both due to overwhelming demand and more physical and legal pressure on the few clinics and doctors remaining.

Although discouraged, Texas advocates are already stepping up to make access as easy as they can for those who have become collateral damage in the battle to overturn Roe. As Think Progress reports, abortion funds are raising money for those who have to reschedule or find new clinics. Fund Texas Women has published a map of Greyhound stops so those who need to travel to other cities or even states can plan their routes. Clinics and lawyers are vowing to take the fight as far as they have to, whatever is necessary, to keep as many clinics open as they can.

Abortion is still legal in Texas for now, even if the court wishes it wasn’t.

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Photo credit: Thinkstock

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135 comments

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4:20PM PST on Nov 18, 2013

Abortion should be legal all over the world, each woman is the owner of her body whatever the reason is. Besides there´s an overpopullation of humans and an unwanted baby comes to suffer is his or her life.

1:11PM PST on Nov 7, 2013

As pro-lifers legislate and fight efforts to ease restrictions on abortion, their priorities are misplaced completely because they are getting paid by many people like me and working to legislate based on their own beliefs not mine or the masses of women it pertains to.

7:56PM PST on Nov 6, 2013

so disgusting

7:16AM PST on Nov 6, 2013

Using bible verses to oppose abortion?!? That might work for someone who is making their own private decision but its the most ridiculous criteria ever to use when changing laws.

2:55PM PST on Nov 5, 2013

It's incredible that in this day and age, there are still judges trampling over the rights of women! ... and all in a state in which abortion is legal.

10:24AM PST on Nov 5, 2013

l' aborto è una tristissima esperienza, sarebbe meglio prevenire le gravidanze indesiderate con una buona educazione alla contraccezione

5:25PM PST on Nov 4, 2013

ty

12:59PM PST on Nov 4, 2013

I think it is wrong to deny a women an abortion, because if it was not legal, they would find unsafe ways to obtain one anyway. Having a child is a huge responsibility, and it dramatically changes your life. Some people think it is easy for a mother to put a child up for adoption, and this is a myth, especially in abusive situations. Children can be used as a tool for control and dominance. Court systems, law enforcement, from my experience, does little to protect women from abuse, child support is laughable, and in some cases, if you leave an abuser, they are often the bread winner and are granted custody of children. It is wrong to use a religious reason to justify allowing a women to obtain an abortion. Sometimes, it could be that they cannot afford a child, or in a dangerous situation, and there are plenty of children in this world that need homes and love. Why bring an unwanted child in the world? In cases that mother's are forced and keep a child, abuse, resentment, and being unloved and unwanted. Unless you have been in a situation that your life is in danger, you cannot support a child, or have been raped, you have no idea how it feels to make the choice. Then people judge you, and are cruel. I think the world would be a better place, that instead of focusing on a undeveloped child, religious people should concentrate on all the children without homes, without love, that are starving and unwanted. Instead of protesting abortion clinics, why not volunteer at a local c

12:07PM PST on Nov 4, 2013

I find it interesting that there are those more concerned with "protecting" zygotes than protecting children from being killed by guns.

here's something to watch concerning women's rights.

http://www.afj.org/multimedia/first-monday-films/films/roe-at-risk-fighting-for-reproductive-justice-2013

9:05AM PST on Nov 4, 2013

This is so sick. Does Doctors without Borders need to turn around and head back to the US? Can doctors who already practice here just stay where they are?

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