Last year, as much of the nation is aware thanks to Wendy Davis, Texas passed a particularly draconian abortion law. Predictably, the law has already caused abortion clinics to close, and by the end of the year there are expected to be only 6 clinics remaining to serve the nation's second-largest state. Despite the huge burdens that the statute will undeniably place on the women of Texas and despite the fact that the laws aren't designed to accomplish anything but to make abortion less accessible, a 3-judge panel of the 5th Circuit Court of Appeals has upheld the law. And, depressingly, the court's decision could well survive review by a Supreme Court that is almost as hostile to the reproductive rights of women.
Under the Supreme Court's 1992 decision Planned Parenthood v. Casey, which at least formally upheld Roe v. Wade, pre-viability regulations of abortion are constitutional if they do not impose an "undue burden" on a woman's right to choose. One might think it obvious that state regulations that cause most of the state's safe abortion clinics to close impose an "undue burden." But the panel randomly selected to hear this case—the George W. Bush nominees Jennifer Elrod and Catharina Haynes and the ultra-reactionary Reagan nominee Edith Jones—made the Court's decision to wink at these burdens inevitable. (It might seem like getting three hardcore opponents of reproductive rights on the same panel is bad luck, but Republican nominees on the 5th Circuit currently outnumber Democratic ones 10-4. This is another example of how the much greater attention paid to the federal courts by Republican presidents is paying off.)
At issue in this case are two provisions, one requiring doctors to have admitting privileges at a hospital within 30 miles, and one that makes it more burdensome for women to have medicated abortions. The linkage of the two provisions isn't a coincidence; the anti-choice strategy to de facto eliminate a woman's right to choose an abortion involves closing abortion clinics on the one hand while making it difficult or impossible for women to use abortion pills on the other.
The requirement that doctors have admitting privileges at a hospital has, as noted, already had a substantial impact on the ability of abortion clinics to be properly staffed. The justification for this burden is that the regulations ostensibly protect the health of women. But this is an almost comically transparent pretext—the provision has no plausible medical benefits. As the court acknowledges, only .3 percent of women who have abortions have medical complications that require hospitalization, and those rare cases can easily be accommodated without the doctor who performs the abortion having admitting privileges. Medical professionals have consistently rejected the laws, and the fact that they are targeted at abortion clinics rather than being applied generally gives away the show. Indeed, the district court plausibly found the regulation to fail even "rational basis" review. As the legal scholar Eric Segall puts it, this provision is unconstitutional for the same reason that a law banning doctors from performing abortions on Monday would be unconstitutional. A law whose sole purpose is to make abortion rarer should by definition be considered an undue burden.
According to Judge Jones, however, the huge burdens the Texas law imposes on women in exchange for no benefits are justified. According to Judge Jones, having to travel more than three hours to obtain an abortion due to a state regulation does not constitute an "undue burden." The Court also rejected the prescient claims by Planned Parenthood that the provision would lead to substantial clinic closures. "[T]here is no showing whatsoever," Jones asserts, "that any woman will lack reasonable access to a clinic within Texas." The assumption that these burdens are "reasonable," among other things, ignores the extent to which this arbitrary reduction in access will fall on poor women, women of color, and/or women in rural areas. The 5th circuit's reasoning would reduce the "undue burden" standard to almost nothing.
Admittedly, it must be said that a major part of the problem here is the Casey standard itself. The "undue burden" text is not only inferior to Roe's trimester framework, it gives federal judges almost unlimited discretion. In particular, the Court's decision in Casey to uphold a mandatory waiting period makes it possible to defend almost any regulation that falls short of a ban. The 5th Circuit stretches the "undue burden" standard to the breaking point, but it's not even clear that it can't be justified under Casey.
It might be tempting to hope that the Supreme Court steps in to add some content back into the "undue burden" standard. But it's far from clear that the Supreme Court wouldn't uphold the 5th Circuit. Justice Kennedy, the swing vote, was a grudging vote to uphold Roe but has yet to find any abortion regulation unconstitutional since, and his opinions have shown substantial hostility to reproductive freedom. It seems all too likely that if the Supreme Court takes the case, it will end up endorsing Texas's strategy for dismantling Roe v. Wade piecemeal.
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