When states like Texas are taken to court over laws that restrict access to abortion – like Texas's House Bill 2, which passed the Legislature in 2013 despite Wendy Davis's midnight filibuster – they have to argue a couple of points: First, that the regulations are “reasonably related” to a “legitimate state interest” and, second, that they do not place an undue burden on a woman's constitutional right to have an abortion.
In arguing that first point, what lawmakers hoped to accomplish in passing a bill – the so-called "legislative intent" – becomes important. In the case of HB 2, Texas lawmakers supporting the bill argued ad nauseam that the law, which required abortion clinics in the state to dump millions into building improvements and upgrades in order to meet the hospital-like operating standards of ambulatory surgical centers, was written solely to safeguard women's health and insisted the intent was not to shutter abortion clinics.
That there's virtually no evidence showing women having abortions in surgical centers are any safer than those going to a standard clinic apparently makes no difference to a three-judge panel on the U.S. Fifth Circuit Court of Appeals.
In a Tuesday ruling that upholds key provisions of HB 2 and is expected to shutter all but eight abortion clinics in Texas, the Fifth Circuit panel provided a road map to other states under its jurisdiction looking to pick off abortion providers. As per the court's ruling, it's totally fair game for anti-abortion lawmakers to pass abortion restrictions under the guise of women's health – despite, as one lower court judge put it, “the dearth of credible evidence” showing those restrictions in any way make women more healthy. Because the state, much like Steve Urkel, can just feign ignorance, throw up its hands and cry did I do that? when a judge finds the law was specifically crafted to close existing licensed abortion providers.
The state appealed to the Fifth Circuit last year after federal district court Judge Lee Yeakel declared the law unconstitutional. In October, the famously conservative Fifth Circuit upheld the law and said the state could begin rolling out the new regulations. Clinics started to close until the U.S. Supreme Court stepped in on October 14, 2014 to keep the law from going into effect until the Fifth Circuit judges could hear oral arguments in the case.
In the Fifth Circuit's decision Tuesday, there was no love lost for Judge Yeakel, whose ruling was harshly criticized throughout the 56-page opinion. In tossing the bill on the grounds that it was unconstitutional, Yeakel had written this about the apparent intent of HB 2:
“...the court concludes, after examining the act and the context in which it operates, that the ambulatory-surgical-center requirement was intended to close existing licensed abortion clinics. The requirement's implementing rules specifically deny grandfathering or the granting of waivers to previously licensed abortion providers. This is in contrast to the 'frequent' granting of some sort of variance from the standards which occur in licensing of nearly three-quarters of all licensed ambulatory surgical centers in Texas. Such disparate and arbitrary treatment, at a minimum, suggest that it was the intent of the State to reduce the number of providers licensed to perform abortions, thus creating a substantial obstacle for a woman seeking to access an abortion. This is particularly apparent in light of the dearth of credible evidence supporting the proposition that abortions performed in ambulatory surgical cents have better patient health outcomes compared to clinics licensed under the previous regime.”
Still, as the Fifth Circuit sees it, the plaintiffs in the case — abortion providers with the Center for Reproductive Health — "failed to proffer enough competent evidence contradicting the legislature's statement of a legitimate purpose for H.B. 2. ... All of the evidence referred to by the district court is purely anecdotal and does little to impugn the State's legitimate reasons for the Act.”
As for the "dearth of credible evidence" showing HB 2 makes abortions safer, the Fifth Circuit said that pretty much doesn't matter, citing Mazurek v. Armstrong, a decades-old Supreme Court case about a Montana abortion law: "In Mazurek, the Supreme Court rejected the argument that the law at issue 'must have had an invalid purpose because all health evidence contradicts the claim that there is any health basis for the law.'" To translate: It literally does not matter whether the law will accomplish its supposed goal — in the case of HB 2, to make women safer.
Which made us wonder whether Texas Gov. Greg Abbott even read the Fifth Circuit's take before crowing in a statement Tuesday that the court's ruling was "vindication of the careful deliberation by the Texas Legislature to craft a law to protect the health and safety of Texas women."
The plaintiffs had also argued before the Fifth Circuit that just looking at the obvious, practical effect of the law— the closing of most of Texas's abortion clinics — revealed its "improper purpose." Again, cribbing from Mazurek, the Fifth Circuit panel wrote, "do not assume unconstitutional legislative intent even when statutes produce harmful results.”
Perhaps the most stunning thing about the Fifth Circuit's take on HB 2 is how the court determined whether enough women will be burdened by the law to render it unconstitutional. Under the regulations in HB 2 — which, barring some higher court order, will take effect July 1 — some 900,000 women of reproductive age will live more than 150 miles away from an abortion provider. That's one in six women of reproductive age in Texas who will have to travel more than 150 miles just to get to an abortion clinic.
In his ruling last year, Yeakel wrote that travel distances combined with a variety of other factors – “lack of availability to child care, unreliability of transportation, unavailability of appointments at abortion facilities, unavailability of time off from work, immigration status and inability to pass border checkpoints, poverty level, the time and expense involved in traveling long distances, and other, inarticulatable psychological obstacles" – created a de facto barrier to abortion for many women across the state.
Just not enough women to convince the Fifth Circuit that HB 2 is unconstitutional. As the judges ruled today: "We do not doubt that women in poverty face greater difficulties. However, to sustain a facial challenge, the Supreme Court and this circuit require Plaintiffs to establish that the law itself imposes an undue burden on at least a large fraction of women. Plaintiffs have not done so here.”
Got that? According to the Fifth Circuit, nearly 1 million Texas women is not "a large fraction" of women.
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While the case is bad for proponents of abortion rights, it is most certainly not the last word on the matter. In a conference call with reporters Tuesday, abortion providers said they plan to take the case up to the Supreme Court on an emergency basis. (The Fifth Circuit also exempted one McAllen abortion clinic from the law — at least until an abortion provider closer to the Rio Grande Valley than San Antonio pops up.)
The question is now is how many clinics will survive the court battle ahead.
Read the whole Fifth Circuit ruling below: