Sunday, February 28, 2016

Abortion back in SCOTUS this week, with little mention of distance, new focus on the shortage of providers

Abortion regulation and litigation is very much back in the news this month.  The New York Times has run a number stories, op-eds and even an editorial board opinion this past week about abortion regulation and the decisions of federal courts regarding the constitutionality of those regulations (so-called TRAP laws--targeted regulation of abortion providers).  Just three of those stories are herehere and here, and what is striking to me about them (other than the sheer volume of bad news regarding diminishing abortion access, especially across the South) is that the rhetoric and concern is shifting further away from the obstacles of distance and poverty (admittedly my pet concerns, as discussed herehere, here and here) to a concern more widespread among reproductive-age women:  the shrinking number of abortion providers--especially in certain regions--means long wait times for all women seeking abortion services.  (Among other places, we see this in a 2014 decision by Judge Myron Thompson of the federal district court in Alabama and in the recent 7th Circuit opinions regarding a Wisconsin law that requires hospital admitting privileges).  This shortage of providers delays abortions until much later in women's pregnancies, thereby increasing the likelihood of complications and making abortion more expensive.  (In the education sector, we would say the services are "impacted"--hard to get because of high demand.)

These are matters of great concern for all women, but I can't let go of the distance issue just yet, not least because of my outrage at some of the knuckle-headed things that the Fifth Circuit Court of Appeals has said about abortion availability and the failure to meet the undue burden standard.  (Read more here).  The court is, for example, now treating as a firmly entrenched and unassailable constitutional truth the proposition that traveling up to 150 miles, each way, to reach an abortion provider, does not constitute an "undue burden."  That court in particular has been very stubborn about not recognizing the plight of poor and rural women.  With that in mind, let me highlight some of the key points from this week's news and opinion coverage of abortion regulation and the pending oral argument before the U.S. Supreme Court.

Linda Greenhouse's op-ed in today's Sunday NYT is titled "Courts Shouldn't Ignore the Facts About Abortion Rights."  In it, she lists some critical facts that the Supreme Court should take seriously in the Hellerstedt case, in which oral arguments will be heard on Wednesday, March 3.  One of those facts is:
Fact No. 2: If [Texas H.B. 2] goes into effect, the abortion clinics in El Paso will close, leaving no abortion services from San Antonio west to the New Mexico border. This is no problem, Texas maintains, because women who would have gone to El Paso can travel about 12 miles farther, across the New Mexico line, to an abortion clinic in Santa Teresa, N.M. The fact that New Mexico has neither the admitting-privileges nor mini-hospital requirements — the very requirements that Texas maintains are necessary to protect the safety of abortion patients — seems not to concern the state.
This is the only mention of distance in Greenhouse's op-ed, which fails to note that the current state of abortion availability in Texas--following implementation and upholding of the admitting privileges requirement of Texas H.B.2--has nearly 1 million reproductive age women living at least 150 miles from an abortion provider.  The women whose access to abortion has been greatly reduced are in south and west Texas, far from the surviving abortion clinics along the I-35 and I-45 corridors.

Erik Eckholm's recent story in the NYT focuses on the situation in Alabama (previously in the Fifth Circuit with Texas and Louisiana, but now in he 11th Circuit with Florida). It features June Ayers, who owns and directs Reproductive Health Services there.  The burden of distance is definitely a feature of the story, though it comes up only at the end:
Already, many of the 1,000 to 1,200 women obtaining abortions at this clinic each year face hours of driving, Ms. Ayers said, and all must make the trip twice because the state requires a 48-hour waiting period after the first visit, which abortion opponents hope will cause those planning to end their pregnancies to have second thoughts. More than two-thirds of the clinic’s patients live at or below the poverty line, and a large majority already have at least one child, she said.
Eckholm's story also features Ashley Garza, a 29-year-old veteran who drove two hours from southeastern Alabama, with her boyfriend, to get an abortion at the Montgomery Clinic.  Eckholm quotes Garza, who experienced extreme hardship as a child, and who is using her G.I. Bill to pursue a degree in social work:
If I had a child now, we’d be in absolute poverty.  It wouldn’t be fair to the child.
If the Montgomery clinic closed, Ms. Garza would have to drive five hours to Huntsville, the sole clinic to survive Alabama regulations.  That, Ms. Garza commented, is something “a lot of women just couldn’t do.”

So now let's consider how all of these issues look in the current litigation.  The Petitioners' brief in Hellerstedt doesn't talk much about the burden of distance--not as much as I expected given the focus on distance in the courts below.  It does, however, quote some of the most powerful language from Judge Lee Yeakel's decision in the federal district court, including this:
"increased travel distances combine with practical concerns unique to every woman." to create barriers to abortion access.  ... These practical concerns include "lack of availability of child care, unreliability of transportation, unavailability of appointments at abortion facilities, unavailability of time off from work, immigration status and inability to pass border checkpoints, poverty level, the time and expense involved in traveling long distances, and other inarticulable psychological obstacles." 
That is followed by the sole mention of rural women, again quoting from the district court:
"The district court also noted that "the act's two requirements erect a particularly high barrier for poor, rural, or disadvantaged women throughout Texas, regardless of the absolute distance they may have to travel to obtain an abortion."
It may prove a good litigation strategy to focus on that which burdens all women rather than "only" those living far from the major metropolitan areas where abortion providers are still able to stay "open," providing services.  One reason that this shift away from the burden of distance and poverty bothers me, however, is that courts are not being compelled to see and grapple with the lived realities of more vulnerable segments of the population.  And on that issue I'm with Linda Greenhouse:  I'd really like to see Supreme Court Justices actually facing--and not evading--some cold hard facts.  Besides, if urban women are having difficulty getting timely appointments for abortion, just think how much more challenging the situation remains for poor and rural women who must overcome so many more obstacles in order to get to whatever appointment they are able to get.    

One of the questions this turn in the litigation raises for me is this:  Will the reproductive rights community do a better job of advocating against laws that curb the rights of all women--women "like them"--than they have done advocating for the well-being of the poor, rural women whose circumstances they probably cannot relate to?  More importantly, will judges be better able to empathize with the "generic" woman facing a long wait at an abortion clinic than they can with the poor, rural outliers/others?

Cross-posted to Feminist Legal Theory.

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