Texas is most likely on course to enact the last section of the state's stringent abortion laws, forcing all but six of the abortion clinics in Texas to close, but there are interesting goings-on as similar state abortion laws work through the court system.
Last week, the Fifth Circuit Court of Appeals ruled 2-1 that Mississippi officials couldn't require doctors to obtain hospital admitting privileges. Hospitals have refused to grant those privileges and the move would force the last abortion clinic in Mississippi to close. State officials said women in need of abortions could travel to Tennessee or Louisiana to get them, but that didn't get any traction with the court. In the opinion, written by Reagan appointee Judge E. Grady Jolly, it was stated that requiring women to leave the state just to exercise their constitutional right to an abortion was, go figure, unconstitutional because states aren't allowed to palm off constitutional rights on other states, creating an "undue burden" for women in the state. (Yes, leaving the same court ruled that leaving Mississippi is an undue burden but traveling across Texas is not.)
On Monday U.S. District Judge Myron Williams went even further in his ruling on Alabama's admitting privilege requirement, basically ripping it to pieces, as Slate noted. If you are looking for an interesting read and a pretty good summary of the recent history of the whole abortion issue, check out his 172-page opinion. It's both well written and incredibly thorough. He also decided that allowing this law to stand and thus closing all but three of Alabama's clinics, would also place an "undue burden" on women in the state.
These decisions have no effect on the Texas law right now, but they could play into how abortion is handled both in Texas and across the country, especially since the Supreme Court is likely to pick up a case on this issue (and we won't know what case the Supremes choose to hear until they actually, you know, choose it.) and look at these types of laws in the next couple years, Aaron Bruhl, a constitutional professor at the University of Houston, says. "It's hard to predict what the Supreme Court would do, and it could depend on which particular case they hear, " he said. "Without being able to predict how any specific case would turn out, the Supreme Court has been chipping away at the right to an abortion, but they haven't totally eliminated it."
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However, an "undue burden" argument, particularly one couched in terms of individual state responsibility, could be appealing to a key figure on the court, the current occasional swing vote Justice Anthony Kennedy. Kennedy votes liberally on most gay rights issues these days, but he hasn't proved to have similar views about women's rights, as the New York Times recently noted. However, approaching the abortion restrictions from the angle of state responsibility, could give him something to consider, Bruhl said.
Meanwhile, the Texas law will most likely force most of the remaining clinics in the state to close. Even if Yeakel finds in favor of the abortion providers, the Fifth Circuit will probably turn the whole thing over, Bruhl says. Once the final section of the law is in place, that will translate to six clinics in the state with only two of those in Houston, the Texas Ambulatory Surgical Center on North Shepherd and the Planned Parenthood Center for Choice ASC.
Women have already been showing up in Houston from across Texas to obtain legal abortions, Angie Hayes, director of Clinic Access Support Network, a Houston nonprofit that gives women rides to and from the clinics, said. Hayes and about a dozen volunteers pick up one to three women a week and give them rides to their appointments. "More than once I've been called by somebody at a clinic about a woman who hopped a bus into Houston and planned on sleeping at the bus stop," she said. "I think that is an 'undue burden.'" Often women don't realize that this isn't a one-day procedure, that they have to get an ultrasound and go through a waiting period before the actual abortion can be done, she said. "We were very hopeful that the courts would step in on this, but if they don't we'll still continue to offer our services. I don't think there will be as much of a need because I think there will be fewer abortions - well, fewer legal ones."