Judging by their announcement late Thursday, the justices of the Fifth Circuit Court of Appeals would like you to know it is not the court’s job to second-guess the Texas legislature, especially when it comes to dramatically restricting abortion access.
On October 2, the Fifth Circuit lifted a lower court stay on Texas’ HB 2, allowing the ambulatory surgical provision of the law to take effect. Though the district court had presided over a four-day trial and evaluated all the evidence and credibility (or lack thereof) of the witnesses, the Fifth Circuit felt that it still had too much audacity in doubting Texas lawmakers’ word that the requirement—which adds time, distance, and expense to the already burdensome process of trying to obtain an abortion—promotes women’s health.
“In the district court’s view, ‘the severity of the burden imposed by both requirements is not balanced by the weight of the interests underlying them,’” wrote the Fifth Circuit in its Thursday decision. “As support for this proposition, the [district] court evaluated whether the ambulatory surgical center provision would actually improve women’s health and safety. This approach contravenes our precedent. In our circuit, we do not balance the wisdom or effectiveness of a law against the burdens the law imposes.”
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According to the Fifth Circuit, it was not Judge Lee Yeakel’s job to weigh the arguments or to evaluate the credibility of the providers’ claims and the State of Texas’ defenses, including their alleged reason for imposing yet another burden on accessing abortion. Nope. Instead of you know, judging, it was apparently Yeakel’s job as district court judge to take the Texas legislature at its word, because to do otherwise and strike the law as unconstitutional would be “perilous.” The precedent the Fifth Circuit cited for this outrageous proposition that the federal courts are to rubber stamp Texas’ anti-abortion restrictions, evidence be damned? Its previous decision ruling that the admitting privileges provision in HB 2 posed no undue burden on abortion rights, despite the devastating wave of clinic closures that followed its enforcement.
It’s the second time the Fifth Circuit has overruled the district court on an emergency motion by the Texas attorney general’s office and allowed a provision of the controversial anti-abortion omnibus bill to take effect; appeals on the actual constitutionality of the laws are still pending. And just as before, the impact of Thursday’s decision will be nothing short of devastating. An undue burden, according to the Supreme Court in Planned Parenthood v. Casey, is supposedly in action “if a regulation’s purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”
Immediately following the decision, at least seven clinics were forced to close. By the Fifth Circuit’s own estimates, approximately 900,000 Texans will now be forced to travel more than 150 miles to access abortion care. Others estimate that number at more than a million. But that’s still not enough to reach the magical, elusive “undue burden” required to prevent the law from taking effect.
So just what would a substantial obstacle for Texas patients look like for the Fifth Circuit? During the preliminary injunction trial, the district court found that the state had more than 40 abortion clinics before the enactment of HB 2, and that after the ambulatory surgical center provision takes effect, only seven or eight clinics will remain. According to the district court, this represents more than an 80 percent reduction in the number of clinics statewide in nearly 14 months.
But that’s still not enough.
In fact, it’s a 100 percent reduction in the number of abortion clinics west and south of San Antonio, a region of Texas larger than some states. In other words, there are no clinics left at all in the area.
Still not enough.
The Fifth Circuit considered a similar question when it reviewed the constitutionality of Mississippi’s admitting privileges requirement, which would shut down the state’s only clinic. Reluctantly, the court ruled that Mississippi lawmakers couldn’t target the Jackson Women’s Health Clinic for closure by passing the requirement. But it was less clear as to whether lawmakers could close the only clinic in the state with a different statute, leaving the ultimate question of whether the Fifth Circuit would consider closing every clinic within a state’s borders an undue burden on the right to chose abortion.
Circuit Judge Emilio Garza doesn’t think it would. In a dissenting opinion in the Mississippi case, Garza wrote, “[T]he sole act of crossing a state border cannot, standing alone, constitute an unconstitutional undue burden on the abortion right because the Constitution envisions free mobility of persons without regard to state borders.”
The question of whether or not there’s an undue burden on abortion rights if a state has no open abortion clinic should, at best, be the kind of hypothetical law professors lob at their students because: of course there is. There’s even legalese to describe this kind of self-evident posturing. Res ipsa loquitur. The thing speaks for itself.
That is exactly the question taking shape, however, to land before the Roberts Court in what could be the the greatest gift yet to the anti-choice movement: The perfect opportunity to overrule Roe v. Wade in substance—to say that these enormous hurdles are not undue burdens—without the attention-grabbing headlines and possible political blow-back of actually overruling that landmark decision.
One of the Fifth Circuit’s central critiques of those challenging both HB 2’s admitting privileges provision and the ambulatory surgical center provision is what it perceives as a lack of evidence of actual impact on these laws. Sure, the Fifth Circuit says, during the four days of trial the doctors and clinics challenging the requirements put forward evidence that abortion is incredibly safe, that a vast majority of the clinics in the state will not be able to comply with the additional regulatory requirements, that those requirements will make opening new clinics nearly impossible, and as a result Texans will go without care. But without patients testifying to being specifically denied an abortion, and with the possibility that sometime in the future new clinics could open to take those patients, regardless of how likely or unlikely that may be, evidence like that amounts to not much more than assumptions. Or, as Circuit Judge Jennifer Walker Elrod put it:
Dr. Grossman simply assumes, without evidence, that these centers are currently operating at full capacity and will be unable to accommodate any increased demand. Likewise, Dr. Grossman did not consider how many physicians with admitting privileges from non-ambulatory surgical centers will begin providing abortions at the ambulatory surgical center clinics, thereby increasing those clinics’ capacities. It also does not appear from the record that Dr. Grossman considered the possibility of additional capacity resulting from new clinics’ being built, nor did he consider that the demand for abortion services in Texas may decrease in the future, as it has done nationally over the past several years. Furthermore, the record lacks evidence that the previous closures resulting from the admitting privileges requirement have caused women to be turned away from clinics. Without any evidence on these points, Plaintiffs do not appear to have met their burden to show that the ambulatory surgical center provision will result in insufficient clinic capacity that will impose an undue burden on a large fraction of women.
If the Fifth Circuit believes there is a lack of evidence to support the impact of its HB 2 rulings, advocates will no doubt have the chance to gather that evidence as they find a way to deliver abortion care to those most in need of it. That’s some cold comfort.
It’s too early to know when the Supreme Court will consider the limits of the undue burden standard, but it’s not too early to know that by the time the Roberts Court does reach that question, it’ll be long past irrelevant for Texans who had to go to great lengths to obtain abortion care—if they obtained it at all.