Thursday night, the 5th U.S. Circuit Court of Appeals granted a stay that allows Texas to fully enforce House Bill 2 -- the anti-abortion measure passed by the state in 2013. As of this morning, there are eight healthcare facilities in the state that can legally provide abortion, one for every 675,000 reproductive aged Texas women. It was the confirmation of a script already written, but is jarring nonetheless. A Midland woman seeking an abortion now faces at least a 300-mile trip.
The circuit's opinion was written by Jennifer Walker Elrod, a George W. Bush appointee. Here are some of the most outrageous bits:
"The evidence does indicate, without specificity, that by requiring all abortion clinics to meet the minimum standards of ambulatory surgical centers, the overall cost of accessing an abortion provider will likely increase. However, as the Supreme Court recognized in Carhart, and we observed in Abbott I, "'[t]he 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.'" Abbott I, 734 F.3d at 413 (alteration in original) (quoting Carhart, 550 U.S. at 157-58)."
Ignoring the legalese, who but the 5th Circuit actually believes that HB2 is "not designed to strike at the right itself?" Governor Rick Perry himself has said that it is his goal to make abortion a "thing of the past," and Carol Tobias, the president of the National Right to Life organization, admitted that HB2 is about restricting access during an August appearance on ABC's This Week.
"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."
Admitting HB2 causes greater difficulties for the most vulnerable is galling enough, but insisting that the number of women facing an undue burden from HB2 is not a large fraction is ridiculous. Dr. Daniel Grossman, the lead witness for the clinics challenging HB2, testified that 17 percent of Texas women seeking abortions would have to drive more than 150 miles. Seventeen percent is a large fraction.
"The district court also erred when it balanced the efficacy of the ambulatory surgical center provision against the burdens the provision imposed. In the district court's view, "the severity of the burden imposed by both requirements is not balanced by the weight of the interests underlying them." Whole Woman's Health, slip op. at 13. As support for this proposition, the court evaluated whether the ambulatory surgical center provision would actually improve women's health and safety. Id. at 14-15 ("The court concludes that it is unlikely that the stated goal of the requirement -- improving women's health -- will actually come to pass."). This approach contravenes our precedent. In our circuit, we do not balance the wisdom or effectiveness of a law against the burdens the law imposes."
That's right, that the U.S. District Court that initially overturned HB2's ASC provision "evaluated whether the ambulatory surgical center provision would actually improve women's health and safety" was a mistake the 5th Circuit needed to rectify.
The lead council for the clinics who filed the suit, Stephanie Toti, said in a teleconference Friday morning that she and her clients will continue to appeal the ruling. Toti also believes an HB2 case will wind up in the Supreme Court "sooner rather than later." Elrod's opinion confirms that she does too. In outlining the conflict between the 5th Circuit's ruling and other circuits, she basically dared the Supreme Court to take the case.
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