Wednesday, June 10, 2015

Fifth Circuit abortion ruling will hurt rural women, but they don't even merit a mention in the opinion

The U.S. Court of Appeals for the Fifth Circuit ruled yesterday in Whole Women's Health v. Lakey that Texas House Bill 2 was constitutional—but with a few caveats.  This decision will bring the number of Texas abortion providers down to 7 or 8 (depending on what source you credit), whereas they numbered 44 in early 2013, before any part of H.B. 2 took effect.  Previously, in March, 2014, the Fifth Circuit upheld H.B. 2's requirement that abortion providers have admitting privileges at a hospital within 30 miles of where the abortions were performed.  Read my analysis of the cases here.   The Abbott decision took the number of abortion providers in Texas down to 18 because many abortion providers were unable to get admitting privileges for reasons the Lakey court acknowledged do not implicate the physician's skills.

Meanwhile, Texas remains the second most populous state in the nation, and the most recent data we have indicates that tens of thousands Texas women have abortions each year.  The plaintiffs in Lakey have indicated they will seek a say of the decision, pending appeal.  If that appeal is unsuccessful, just handful of clinics will serve that population.

Manny Fernandez and Erik Eckholm explain the consequences of the Lakey decision in the New York Times:
Previously, a panel of the same federal appeals court ruled that Mississippi could not force its only remaining abortion clinic to close by arguing that women could always travel to neighboring states for the procedure. But the panel in the Texas case on Tuesday held that the closing of a clinic in El Paso — which left the nearest in-state clinic some 550 miles to the east — was permissible because many women had already been traveling to New Mexico for abortions, and because the rule did not close all the abortion clinics in Texas. 
In the case of the McAllen clinic, the sole abortion provider in the Rio Grande Valley, Tuesday’s decision held that the distance of 235 miles or more to the nearest clinic did pose an undue burden. For now, at least, the Fifth Circuit panel exempted that clinic from aspects of the surgical-center and admitting-privileges requirements.
What the court seems not to realize is that—even if El Paso women can go to New Mexico for abortion services—a woman living half way b/w San Antonio and El Paso will have to travel more than 235 miles to get an abortion.   That is, she will have to travel to either San Antonio or to New Mexico.  So there is a significant inconsistency here.  Meanwhile, the court did not use the word "rural" or "nonmetropolitan," even as it acknowledged that women Rio Grande Valley would be unduly burdened by the combination of the two H.B. 2 provisions and the 235-mile journey to San Antonio.  

The Fifth Circuit rubber-stamped some very callous findings of the Fifth Circuit motions panel—including the fact that 900,000 Texas women who are more than 150 miles from an abortion provider do not matter for purposes of the "undue burden" standard because (1) 150 miles is not too far to travel/does not constitute an undue burden and (2) this 17% of Texas women do not constitute a "large fraction" of women impacted by the law.  

I have much more to say about this decision, which leaves Texas with a bizarre patchwork of abortion providers, all in north and east Texas and all along I-35 and I-45 corridors—except for McAllen  For now, however, I will comment on two other more "procedural" aspects of the opinion that I find to be of great interest.  First, this Lakey opinion was issued per curium, but was not the typical short and clear per curium opinion.  Read more here.  Second, the opinion took three months longer for the court to issue than its equally controversial opinion in Abbott in 2014.   Both Lakey and Abbott were argued in January (2014, 2015 respectively), but the Abbott opinion was issued in March 2014, while we waited until June 2015 for the Lakey decision.  I think it took Judges Prado, Elrod and Haynes some time to figure out how to achieve the result they wanted in Lakey, while not going completely over the top by saying that 235 miles is not an undue burden on the abortion right.  

Another story in the NYT, this one discussing the Lakey opinion in relation to many other cases and in relation to the undue burden standard is here.  

1 comment:

Dakota Sinclair said...

It seems that there is too much emphasis placed on court opinions for what an ideal world would be like. In an ideal world, in theory, the Texas statute might be reasonable. That's overlooking other, numerous, issues. But it is not a perfect world and forcing women to drive for miles to get a legal abortion is not only costly and time consuming, especially for working mothers, but dangerous. Abusive families would note a young woman who disappears not once, but twice.

It seems particularly bizarre that the court would ignore 17% of the women who are now 150+ miles from a provider. In most circles almost one out of five is considered significant odds. Looking to this map: http://www.theatlantic.com/health/archive/2014/10/the-cost-of-driving-to-an-abortion/381985/

It's estimated that under 2014 gas prices a woman would need 151 dollars to go round trip to an abortion provider in the extreme cases. While this is certainly not applicable to all 17% of the woman seriously harmed by the Texas statute, it demonstrates that what the 5th circuit has done is favor urban centers over rural areas.