Listening to the oral arguments before the 5th U.S. Circuit Court of Appeals on Friday confirmed what advocates for reproductive rights feared upon seeing the three-judge panel selected to hear the Texas' appeal of a lower-court ruling striking down two sections of House Bill 2, the 2013 legislation enacted to restrict access to abortion. Two of the judges, Jerry E. Smith and Jennifer Elrod, seemed ready to rule in favor of the state, as they did in a previous challenge to HB2. They peppered Stephanie Toti, the attorney representing the clinics bringing the challenge, with questions about whether reducing the number of abortion providers in the state to eight would actually pose an "undue burden" to women in the state seeking abortions.
As defined in federal case law, a law fails to meet the undue burden standard if it is too restrictive of one's fundamental rights. The standard has also been applied when a law lacks what former Supreme Court Justice John Paul Stevens called a "legitimate, rational justification."
No major medical organization has ever agreed with the contention made by proponents of HB2 and similar laws that its major requirements -- that doctors who perform abortions have admitting privileges at a nearby hospital and that clinics providing abortions meet the standards for ambulatory surgical centers -- make women safer. In fact, as Dr. Hal Lawrence, the CEO of the American Congress of Obstetricians and Gynecologists has said, the full implementation of the law could lead to women seeking out illegal abortions or failing to get necessary prenatal care, endangering themselves in the process.
Nevertheless, it would be surprising if the 5th Circuit denied the state's request for a stay of the lower court order that kept HB2's restrictions from taking affect. Barring such a surprise, 15 of the state's clinics will close immediately leaving eight abortion providers for Texas 5.4 million reproductive aged women.
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Once the stay is granted, there will be one clinic in Austin, two clinics in Dallas, one clinic in Fort Worth, two in Houston and two in San Antonio. That's one clinic for every 675,000 reproductive aged women in the state. Mississippi, which recently saw its last abortion clinic kept open by a different 5th Circuit panel, has about 600,000 reproductive aged women total. If the full brunt of HB2 hits the state, women in Texas will have less access to abortion than women in Mississippi.
Women seeking abortions in El Paso will either have to cross the border into New Mexico or drive the 550 miles to San Antonio to get to a clinic. Women in Midland face a 300 mile drive to Fort Worth. McAllen women face a 260 mile trek to San Antonio, a bit longer than the approximately 150 mile journey required of women in Laredo (to San Antonio) and Abilene (to Fort Worth). All to get a constitutionally protected medical procedure.
When the ruling comes, Planned Parenthood will do everything it can to ensure that women have access to abortion, whether they live in El Paso, McAllen or Midland. For the past year, the group has engaged donors in a fundraising camping anticipating the eventual implementation of HB2. Surgical centers like the new one in Dallas or the retro-fitted one about to open in San Antonio have been funded, and money is available to women for travel costs or to buy birth control.