Over the next 22 days, the number of facilities where women in Texas will be able to have legal abortions and/or be prescribed the medical abortion pill mifepristone will dramatically decrease—from the more than 40 spread across the state in 2013 to only seven located only in Austin, Dallas, Fort Worth, Houston, and San Antonio by next month.
Today, the U.S. Court of Appeals for the Fifth Circuit upheld a ruling by the state of Texas that every reproductive health care facility that offers abortions—both medical and surgical services—must comply with the same structural and facility standards as an ambulatory surgical center (ASC) and that every doctor performing an abortion service must have "admitting privileges" at a hospital within 30 miles from the office or clinic where they practice.
"For scores of Texas women, the repercussions of this ruling will be devastating," said Whole Woman's Health Founder and CEO Amy Hagstrom Miller. "Ending a pregnancy could mean traveling hundreds of miles and overcoming needless hurdles such as needless costs, childcare, time off, and immigration checkpoints."
Some salient points in the Fifth Circuit ruling[1]:
· The state of Texas says it's imposing these regulations as a means to improve patient care.
In opposition, the State offered expert testimony that the sterile environment of an ASC was medically beneficial because surgical abortion involves invasive entry into the uterus, which is sterile. Accordingly, the State's expert opined that abortion procedures should "be performed in an ASC where the higher standard of care is required so as to better protect the patient's health and safety." Regarding the as-applied challenge to the admitting privileges requirement, the State offered expert testimony that this requirement leads to greater continuity of care and "assures peer-review of abortion providers by requiring them to be credentialed and hold admitting privileges at a local hospital, thereby protecting patients from less than qualified providers."
· Never mind that this requirement will severely limit access to qualified providers at all—because the intent of the law isn't to do that, so it doesn't matter what the ramifications are.
The Plaintiffs also argue that an impermissible purpose can be inferred from the effect of the law—the closure of a majority of abortion facilities in Texas. This argument is foreclosed by Mazurek, in which the Supreme Court explained that courts "do not assume unconstitutional legislative intent even when statutes produce harmful results." 520 U.S. at 972; see Lakey, 769 F.3d at 295 (citing Mazurek, 520 U.S. at 972); cf. Casey, 505 U.S. at 874 ("The fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it.").
· Even though 900,000 women would be forced to travel more than 150 miles to reach their closest reproductive health center—but that's not enough women to matter.
...after the admitting privileges requirement went into effect, approximately 400,000 women of reproductive age would face travel distances of more than 150 miles; and (2) once both the admitting privileges and ASC requirements went into effect, approximately 900,000 women of reproductive age would face travel distances of more than 150 miles. See Lakey, 46 F. Supp. 3d at 681-82. Although Dr. Grossman and the district court did not mention percentages or fractions, using the district court's finding that there were approximately 5.4 million women of reproductive age in Texas, see id. at 681, the following percentages and fractions are derived: (1) 7.4% or 1/13 of women of reproductive age faced travel distances of 150 miles or more after the admitting privileges requirement went into effect; and (2) 16.7% or 1/6 of women of reproductive age would face travel distances of 150 miles or more after both requirements went into effect. The motions panel majority found that these numbers did not satisfy the large fraction test.
· In fact, the court upheld that traveling three hours each way—and even being subject to a 24-hour waiting period between consultation and procedure—was not "too far" to travel for reproductive health services.
Nonetheless, the closure of the Corpus Christi clinic means that all women in the Rio Grande Valley will have to travel approximately 235 miles to San Antonio or farther to obtain an abortion. In addition, the president and CEO of Whole Woman's Health, Amy Hagstrom Miller, and a certified community health worker, Lucila Ceballos Felix, testified regarding the difficulties that women in the Rio Grande Valley faced after the McAllen facility ceased performing abortions, including that the clinic saw an increase in self-attempted abortion and some women indicated they would be unable to make the trip from McAllen to San Antonio or Houston to obtain an abortion. In Abbott II, relying on Casey, we held that having to travel 150 miles from the Rio Grande Valley to Corpus Christi to obtain an abortion was not an undue burden for purposes of the facial challenge raised there and that "Casey counsels against striking down a statute solely because women may have to travel long distances to obtain abortions." Casey permitted even farther distances than 150 miles because it involved a 24-hour waiting period and women in 62 of Pennsylvania's 67 counties were required to travel for one to more than three hours one way to obtain an abortion. See Lakey, 769 F.3d at 303 (citing Abbott II, 748 F.3d at 598). We recognize that any statement of "how far is too far" will involve some imprecision. Casey suggested that three hours (one way) was not too far.
· As for poor women or women who don't have the means to travel up to three hours each way to be prescribed and dispensed a pill or undergo an outpatient procedure: The court says, "Too bad, it's your fault you're poor," also, "There aren't enough of you to matter."
In reaching its conclusion that H.B. 2's requirements imposed an undue burden on a significant number of women, the district court also found that travel distances combined with the following practical concerns to create a de facto barrier to abortion for some women: "lack of availability of 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, inarticulable psychological obstacles." Lakey, 46 F. Supp. 3d at 683. On this point, we agree with the motions panel majority: "We do not doubt that women in poverty face greater difficulties. However, to sustain a facial challenge, the Supreme Court and this circuit Case: 14-50928 Document: 00513071917 Page: 40 Date Filed: 06/09/2015 No. 14-50928 41 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." Lakey, 769 F.3d at 299; see Abbott I, 734 F.3d at 415 (holding that "obstacle[s]" that are "unrelated to the hospital-admitting-privileges requirement" are irrelevant to the undue-burden inquiry in a facial challenge); cf. McRae, 448 U.S. at 316 ("The financial constraints that restrict an indigent woman's ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortions, but rather of her indigency."); Maher, 432 U.S. at 474 (reasoning that "[t]he indigency that may make it difficult—and in some cases, perhaps, impossible—for some women to have abortions is neither created nor in any way affected by the" state's regulation). Moreover, even accepting the district court's finding on this point, it is not clear from the record what fraction of women face an undue burden due to this combination of practical concerns and the effects of H.B. 2.
· Whatevs you guys, if you live in El Paso, just go get your abortion in New Mexico, says the court.
Therefore, although the nearest abortion facility in Texas is 550 miles away from El Paso, there is evidence that women in El Paso can travel the short distance to Santa Teresa to obtain an abortion and, indeed, the evidence is that many did just that before H.B. 2. Accordingly, because H.B. 2 does not place a substantial obstacle in path of those women seeking an abortion in the El Paso area, we hold that the district court erred in sustaining Plaintiffs' as-applied challenge in El Paso.
If it sounds straightforward enough—doctors obtaining admitting privileges at hospitals within 30 miles and clinics having hospital-like ASC facilities—well, it's not that easy in reality. The Plaintiffs in the case presented evidence that doctors were denied admitting privileges at hospitals "for reasons other than their competence" and it's expensive and not always a possibility (permit-wise, space-wise, logistics-wise) to expand a doctor's office or a clinic to a structure that's the equivalent of a hospital surgical facility.
Pro-choice groups have said they will appeal this decision. But what will happen to reproductive health facilities in Texas over the next 22 days?
Photos: Getty Images
References
- ^ the Fifth Circuit ruling (www.ca5.uscourts.gov)
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