The fundamental rights of millions of Texas women are at stake in a case in which the 5th Circuit Court of Appeals heard oral arguments on Wednesday. The case, Whole Woman’s Health v. Lakey, will determine the constitutionality of a Texas law that imposes ambulatory surgical center (ASC) regulations on abortion providers. The judges will essentially decide if women living outside the state’s major metropolitan areas, and who therefore must travel considerable distances to reach the few abortion providers able to comply, are constitutionally relevant.
If the 5th Circuit upholds the Texas HB 2 requirement that abortion providers meet ASC standards, the number of providers in Texas will drop from 16 to eight. All remaining clinics will be located in major metropolitan areas in northern and eastern Texas: Dallas, Fort Worth, Houston, Austin and San Antonio. Already, 25 Texas clinics closed last year as the result of the 5th Circuit’s decision in Planned Parenthood of Texas v. Abbott, which upheld Texas HB 2’s requirement that abortion providers have admitting privileges at a nearby hospital. Access to safe and legal abortion in Texas — already decimated by Abbott — is at risk of vanishing.
In October, the 5th Circuit ruled that the ambulatory surgical center requirement could go into effect pending full consideration of the law, the task the court took up this week. That October decision provides insights into the court’s thinking. First, the court treated a one-way trip of 150 miles as a constitutional “safe harbor” — a distance that did not impose an undue burden on a woman’s right to terminate a pregnancy. This effectively doubled the distance that other courts have suggested is constitutionally acceptable. Second, the court held that 900,000 Texas women — 1 in 6 of the state’s reproductive-age females — who live farther than 150 miles from an abortion provider are too few to matter in challenging the constitutionality of the law as written. Both rulings are inconsistent with U.S. Supreme Court precedents, as well as with recent decisions of other U.S. Courts of Appeals.
Among those deemed constitutionally irrelevant by recent 5th Circuit decisions are numerous women in South and West Texas, some of whom live hundreds of miles from the Interstate 35 and 45 corridors where abortion providers are expected to meet the ambulatory surgical center requirements. Many of those women are disadvantaged by more than geography; they are among the poorest and most disenfranchised populations in the state and, indeed, in the entire nation. In the four counties that constitute the Rio Grande Valley, for example, the poverty rate is a whopping 38 percent. These women previously had abortion access in McAllen and Harlingen, but if the court upholds the ambulatory surgical center requirement, they will have to travel about 250 miles to San Antonio.
The Abbott and Lakey rulings have revealed judges who appear not only oblivious to their own socioeconomic and metropolitan privilege but also grossly insensitive to the day-to-day realities of the less fortunate denizens of Texas, whose lives are also governed by these judgments. If the 5th Circuit in this case holds that women do not face an undue burden when they must travel 250 to 300 miles one way to exercise their constitutional right, the court will reinforce the sense it is grossly out of touch with the realities of Texas’s poor and rural populations.
The 5th Circuit has an opportunity in Lakey to show that it is neither clueless nor callous. It can do so by retreating from the metro-centric path it has been forging. The court should now demonstrate that it takes seriously the constitutional rights of all Texans — including poor and rural women.
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