Yesterday an all-female 3-judge panel of the Fifth Circuit Court of Appeals upheld Texas's abortion clinic regulation law. As you can imagine, this has got MSNBC, the "war on women" network, outraged.
"Texas all but guts Roe v. Wade" grouses the teaser headline for Irin Carmon's March 28 story on msnbc.com. "One third of Texas’s abortion clinics have closed. That’s not bad enough for these female judges. Next stop: The Supreme Court," added the caption below a photo of pro-choice protesters. The story itself, by a 2013 recipient of the New York Abortion Access Fund's "Champion of Choice" award, was fraught with lamentations about the alleged injustice of the ruling and ended on a hopeful note that maybe, just maybe, the Supreme Court would ride to the rescue of the abortion lobby (excerpted in full below; emphases mine):
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The Fifth Circuit Court of Appeals ruled Thursday that two provisions of a Texas abortion law are constitutional, including one that has closed a third of the state’s clinics. The unanimous panel, made up of three women appointed by Republicans, had already allowed the full brunt of the law – the same one now-gubernatorial candidate Wendy Davis tried to block – to go into effect.
Women’s health advocates who sued on behalf of abortion providers to block the law condemned the decision. “This is a terrible court ruling that will severely limit a woman’s access to safe and legal abortion in Texas,” said Planned Parenthood president Cecile Richards. Nancy Northup, president of the Center for Reproductive Rights, which represents several Texas clinics, said, “Right now, the state of Texas is gutting the constitutional protections afforded by Roe v. Wade more than 40 years ago, leaving large swaths of Texas left without a provider.”
The Supreme Court has held that laws restricting access to abortion can’t put an “undue burden” or have the purpose of putting a “substantial obstacle” in the path of a woman seeking an abortion. But in a decision written by Judge Edith Jones and signed onto by Judges Jennifer Elrod and Catharina Haynes, the Fifth Circuit argued that Texas’s law wasn’t harsh enough to meet that standard. Despite the fact that the admitting privileges requirement has been rejected as medically unnecessary by the American Medical Association and the American College of Obstetricians and Gynecologists, the Fifth Circuit opinion accepted the state of Texas’s reasoning at face value – that it was intended to protect women’s health, not end access to abortion.
The Fifth Circuit wasn’t impressed at how much harder it has become for Texas women to have abortions, both because clinics whose providers have been rejected for privileges have closed outright and because clinics with doctors that have been able to get privileges are operating at reduced capacity. According to a map by RH Reality Check’s Andrea Grimes, “As of March 6, there are 25 open abortion clinics, six of which are ambulatory surgical centers, in Texas.” There were 36 abortion clinics in Texas at the time the law was passed, meaning that the dire prediction that a third of the clinics would close has come true. When requirements that abortions be provided in ambulatory surgical clinics go into effect in September, that will leave only six clinics, plus another one Planned Parenthood is building in San Antonio. In 2011, there were 73,200 abortions in Texas.
In the oral argument in New Orleans in January, an attorney for the clinics had pointed out that the closures disproportionately burdened women living in the Rio Grande Valley, which had only two clinics. The judges were skeptical then, and they elaborated in their decision: “Even if we were to accept that both clinics in the Rio Grande Valley were about to close as a result of the admitting privileges provision, however, this finding does not show an undue burden,” they wrote. In fact, they don’t have to “accept” anything – both clinics closed three weeks ago.
The closures are not an undue burden, write the judges because “it takes less than three hours on Texas highways” to get to Corpus Christi. (The Corpus Christi clinic is expected to close in September.) “Although some clinics may be required to shut their doors, there is no showing whatsoever that any woman will lack reasonable access to a clinic within Texas,” they add, but only heed evidence from the trial in October, when the law had barely taken effect.
“Requiring abortion providers to obtain admitting privileges will reduce the delay in treatment and decrease health risk for abortion patients with critical complications,” the panel wrote. The complication rate for abortion is extremely low, and there is no evidence that having a patient with complications be attended to by the same physician rather than in an emergency room makes any difference. There is, however, evidence that the complication rate rises the later a woman has an abortion, and that making abortions harder to access increases the delay.
The Fifth Circuit also upheld the provision that requires an outdated regimen on medication abortion, narrowing the window of time a woman can take a pill to end a pregnancy and making it less safe.
Their decision came to the opposite conclusion from the Seventh Circuit on a similar law in Wisconsin requiring that abortion providers have admitting privileges at a local hospital. It also rebuked both the Texas District Court and the Seventh Circuit court for rejecting the same admitting privileges law for lacking any basis in evidence. “It is not the courts’ duty to second guess legislative factfinding, ‘improve’ on, or ‘cleanse’ the legislative process by allowing relitigation of the facts that led to the passage of a law,” the panel wrote. That is, in fact, what courts do all the time.
All this makes it even more likely the Supreme Court will weigh in, as it already signaled it would when a majority of Justices refused to block the same law from taking effect. In his dissent from that order, Justice Stephen Breyer wrote that “the underlying legal question—whether the new Texas statute is constitutional—is a difficult question. It is a question, I believe, that at least four members of this Court will wish to consider irrespective of the Fifth Circuit’s ultimate decision.” It takes four votes for the Supreme Court to agree to take a case.