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 book Crow 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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