More than a dozen abortion clinics in Texas won't reopen tomorrow.
The federal Fifth Circuit Court of Appeals issued a ruling Thursday afternoon allowing state officials to immediately begin enforcing the second part of House Bill 2 (the one that state Sen. Wendy Davis famously filibustered against) while it fights to overturn U.S. District Judge Lee Yeakel's ruling that the law is unconstitutional. That means that Texas, a state of 26 million people, now only has 8 or fewer abortion clinics since most of the state's providers can't afford to comply with HB2's key provision requiring clinics to make costly upgrades to meet the standards of hospital-like surgical centers.
Why did the three-panel court choose to rule this way while they wait for the state to argue that the second portion of the law is indeed constitutional? Well that's where all of this gets really interesting. In her opinion, Circuit Court Judge Jennifer Walker Elrod said abortion providers could not prove that it would be an "undue burden" to Texas women seeking an abortion if the Lone Star State closed the bulk of its clinics, including every single abortion clinic west of San Antonio. The ruling also shutters abortion clinics in McAllen and El Paso that had reopened after Yeakel's ruling back in August. (There will be clinics left open in Houston, Dallas, Fort Worth, Austin and San Antonio as the law swings into action.)
While many of the clinics in the state will close, most women in Texas will still be within 150 miles from the nearest clinic, Elrod assuredly wrote in her ruling. "Even assuming, arguendo, that 150 miles is the relevant cut-off, this is nowhere near a 'large fraction,'" she continued. And if you believe the state's reasoning (and the Fifth Circuit panel of judges apparently did), that's an absolutely reasonable distance for most women to have to travel for an abortion, and one that any woman who wants an abortion badly enough will surely be able to overcome.
So what about those 900,000 or so women of reproductive age who live more than 150 miles from the nearest abortion provider? That's just not enough overly-burdened women to justify invalidating the law, the court ruled.
And Elrod clearly bought the line pushed by state officials that Texas lawmakers only passed HB2 because they care about women's health.
Besides its view of the above regulation, the district court cited no record evidence to support its determination that the ambulatory surgical center provision was enacted for the purpose of imposing an undue burden on women seeking abortions, nor did it make any factual finding regarding an improper purpose. The Texas Legislature's stated purpose was to improve patient safety.
To no one's surprise, the anti-abortion group Texas Alliance for Life cheered the Fifth Circuit's ruling. Joe Pojman, the group's executive director, said in a statement that "states should have the right to protect women from dangerous abortion procedures."
In a statement Thursdsay, Amy Hagstrom Miller, president and CEO of Whole Women's Health, said she expects she'll soon be seeing Texas patients at the group's New Mexico abortion clinic.
"The courts left in place one of the most restrictive and harmful laws against women in the country," she said. "What we have been fearing is now official: Texas faces a health care crisis, brought on by its own legislators."
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