Lyle Denniston unpacks last week’s big abortion ruling:
The ruling, issued Thursday evening by the U.S. Court of Appeals for the Fifth Circuit, is expected to mean that only seven or eight clinics located in the largest cities in Texas will remain open. Not long ago, Texas had more than forty clinics operating throughout the state.
This marked the second time that the Fifth Circuit had overturned most of a ruling by a federal trial judge in Austin blocking enforcement of provisions in a broad new abortion-regulation law that was passed by the state legislature in July of last year. Earlier this year, the Fifth Circuit had allowed the state to continue to enforce — and later upheld as constitutional — a requirement that took effect last October that any doctor performing an abortion in the state must have privileges to send patients to a hospital within thirty miles. After that rule went into effect, the number of clinics still open dropped from more than forty to fewer than thirty. In its Thursday ruling, the Fifth Circuit reaffirmed its view that this limitation is valid.
The second provision, not yet upheld as constitutional but now allowed to go into effect, requires all abortion clinics in the state to have facilities equal to an “ambulatory surgical center.” It has been estimated that, if a clinic does not meet that standard, it could cost upwards of $1 million to upgrade.
Hayley Munguia illustrates the impact of this ruling with the above chart:
Certainly, an increased number of women will have to travel farther to legally obtain an abortion.
Before the new law was passed, no Texan lived more than 200 miles away from a clinic that performed abortions in the state. The closures mean that almost 800,000 women of reproductive age will live outside that range. With Texas law requiring a 24-hour waiting period after an in-person consultation, many women who make two trips to a Texas abortion provider will have to travel more than 800 miles total to legally obtain the procedure. And the clinics that are remaining open won’t have the capacity to help every woman who requests their services.
Sophie Novack talked to both supporters and opponents of the regulations:
“Abortion facilities should raise their standard of care to the level of ambulatory surgical centers to ensure that abortions are not performed in a manner that endangers the health and safety of women,” Joe Pojman, executive director of Texas Alliance for Life, said in a statement. “Texas women deserve no less.”
Abortion rights activists argue that it is a political move meant to shutter clinics and make abortions difficult to access. Health groups like the Texas Medical Association and the American Congress of Obstetricians and Gynecologists agree, saying the restrictions are not medically necessary.
“Thanks to good medical care, abortion is one of the safest procedures,” John C. Jennings, president of ACOG, said in a statement. “Under the guise of making abortion safer, these requirements actually make abortion less safe and will prevent women from getting the abortions they need. Even procedures with higher complication and mortality rates don’t have to meet these specious standards.”
Amy Davidson is among the opponents:
There is another factor, involving other numbers: poverty. The Fifth Circuit judges acknowledged that women without much money would be more affected by the law than others: they might not have a car, or a way to take a day off from work to drive six hours. But that didn’t, somehow, change the judges’ calculation.
Wesley J. Smith finds it ironic “that Planned Parenthood says only 3 percent of its business is abortion, yet closes its clinics en masse when the abortion going gets tough.” But he is unsure about what comes next:
Will the Fifth Circuit take it en banc? Don’t know. Will the case go to the Supreme Court if it survives the Fifth? I think so. Will it survive the Supremes? Don’t know.
Drum also wonders if the case will reach SCOTUS:
Conservatives, including those on the Fifth Circuit, are increasingly confident that Anthony Kennedy’s position on abortion has evolved enough that he’s finally on board with a substantial rewrite of current abortion law. And since the other four conservative justices have been on board for a long time, that’s all it takes. Kennedy might not quite be willing to flatly overturn Roe v. Wade, but it’s a pretty good guess that he’s willing to go pretty far down that road.
Waldman fears the consequences of such a ruling:
[I]f the Supreme Court were to uphold this decision, it would be a signal to every Republican-controlled legislature — one you can bet they’d heed — that there’s almost no restriction on abortion rights that is too extreme, too contemptuous of women and their rights, or too disingenuous to pass the Court’s muster. Right now, there are states where abortions are all but impossible to get; for instance, there’s only one clinic in all of North Dakota that performs them. But ten years from now, half the country could look like that.
Even states like Pennsylvania already have significant hurdles. Emily Bazelon recently reported on the arrest of a Pennsylvania mother, Jennifer Whalen, for trying to obtain an illegal abortion for her teenage daughter:
The closest clinic was about 75 miles away. Pennsylvania requires women seeking abortions to first receive counseling and wait 24 hours before returning for the procedure. The cost of a first-trimester abortion is typically between $300 and $600. Whalen works as a personal-care aide at an assisted-living center for the elderly. She didn’t have health insurance for her daughter. And she was worried about taking time away from work and her family to make two trips or to stay overnight. At the time, Whalen and her husband shared one car, which they both used to get to work. And she hadn’t told her husband about the pregnancy. “I knew he would be upset, and I was protecting the whole family,” she said. (Whalen’s husband, who waited outside in the car during our interview, declined to talk to me.)
Whalen called a local women’s center on her daughter’s behalf but was told no one there could help, she said. She and her daughter did more online searching, and a site popped up with misoprostol and mifepristone for sale for $45. Whalen hadn’t heard of the medication before. “I read all the information,” she said. “They said these pills would help give a miscarriage, and they were the same ones a doctor would give you.” She says she had no idea that buying them was illegal.