The media’s assessment of the immediate and catastrophic impact of the U.S. Court of Appeals for the Fifth Circuit’s decision upholding the admitting privileges requirement in HB 2—an omnibus anti-abortion law passed last summer that requires all doctors performing abortions in the state to have admitting privileges at nearby hospitals—
have been confined mostly to Texas so far. And rightly so. The entire Rio Grande Valley has been cut off from access to reproductive health care, forcing many women in the state to either seek care across the border in Mexico or to go without.
Unfortunately, though, the effects
of the court’s decision to deem that portion of the Texas law constitutional extend well beyond Texas. During a trial this week in a federal court in Alabama, attorneys for the State of Alabama argued that the court should not be concerned about the impact of a similar requirement there, under HB 57, because even if it closes clinics women in Alabama are no worse off in terms of accessing reproductive health care than if they lived in neighboring states.
For those patients who have to travel to access care, the state argued that even if access is cut by 40 percent, as advocates claim it will be, those travel restrictions aren’t unreasonable compared to neighboring states like Florida, Georgia, and
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Let’s pause here for a second.
The heart of the State of Alabama’s argument is that even if Planned Parenthood is right and this admitting privileges law forces some of its clinics to close, because they can’t comply with the law for whatever reason, that’s OK because then Alabama will be in line with the precedent Texas has set in ignoring women’s constitutionally guaranteed reproductive rights. It doesn’t matter that the Fifth Circuit’s decision in Planned Parenthood v. Abbott isn’t binding on the court in Alabama, nor does it matter that the Texas experience of rapid clinic closures under admitting privileges requirements is not directly relevant to the Alabama case.
Normalizing the idea that patients should have to travel far distances to access abortion care and upholding the law that made it possible, the decision by the Fifth Circuit did enough already.
In the event the trial court is feeling sympathetic to the plaintiffs challenging the restriction, attorneys for the State of Alabama argued
it should not. According to the state, the clinics most at risk for closure could comply with the law, they just haven’t tried hard enough. For instance, attorneys for the state argue that the real explanation for Planned Parenthood’s difficulty in recruiting doctors is low pay, not threats of intimidation and violence. “The plaintiffs have been paying their abortion doctors roughly the same price per abortion for a long time, which is less than doctors are paid for performing comparable procedures,” the state argues in its trial brief. “The evidence will show that the plaintiffs presently rely on a small pool of part-time doctors who are ideologically motivated to provide abortions, even if they do not need additional income. Despite the plaintiffs’ assertions that doctors in Alabama refuse to provide abortions because of violence or other non-economic considerations, there will be no Alabama doctor who testifies that violence or other non-economic considerations prevented him or her from performing abortions.”
The rest of the state’s trial brief explains that any real loss of rights that the law would bring are not ripe yet—which is another way of saying that the courts should wait until there are women willing to come before the court and detail how the Alabama law prevented them from accessing abortion care when they needed it before considering whether the law is unconstitutional.
Finally, the state closed by arguing that Planned Parenthood shouldn’t even be allowed to bring the lawsuit. “The evidence at trial will also establish that the plaintiffs lack the standing to bring this claim on behalf of their patients,” the state’s attorneys said. “It will highlight the conflict of interest between businesses, which refuse even to attempt to comply with the health-and-safety regulations, and their customers, which are the intended beneficiaries of the health-and-safety regulation.”
This argument, buried at the close of the state’s brief, is an important one. There is a long line of precedent that allows health-care providers to challenge the constitutionality of abortion regulations on behalf of their patients. This idea of “third party standing'” is an important one simply as a practical matter. Lawsuits are expensive, time-consuming matters, and allowing doctors and clinics to assert claims on behalf of patients helps assure
those claims get brought forward and to help spread the cost of pushing back against unconstitutional state action.
But as the State of Alabama’s defense of HB 57 makes clear, admitting privileges
legislation is more about driving a wedge between low-income patients and their reproductive health-care providers then about protecting patient safety. Instead of defending the merits of the law with evidence of improved patient care under states that have next to no reproductive health-care providers, attorneys for Alabama attacked Planned Parenthood almost as if it doesn’t matter to them that the federal court believes the law is reasonable so long as the court finds Planned Parenthood unlikeable.
The trial on the Alabama admitting privileges law is expected to last into the beginning of June.