With or without Rue, Texas’ case was weak because abortions are provided safely, in the state and across the country, in clinics that are not ambulatory surgical centers. Retrofitting a clinic isn’t just a huge cost. It also makes clinics more austere and medicalized—which can mean scarier and less approachable for women. Last spring, when I was working on this story for the New York Times Magazine, I visited a Whole Woman’s Health clinic in Austin that has since shut its doors. In the post-procedure recovery room, women were snuggled in fleece blankets, drinking tea. The blankets and the tea would be against the rules in the new world the Texas law envisions, the clinic’s founder and owner, Amy Hagstrom Miller, told me. “I can’t do any of that in an ASC clinic,” she said. There’s more. “Every staff person has to wear surgical garb. The facility has to be really cold, with specific temperature requirements—12 different ones that have to be checked every single day. The OR has to be four times as big. I think it’s actually by design, to further stigmatize abortion in the way women experience it—to make it cold and impersonal.”
But mostly, Texas just wants to cut women off from abortion access, which in the end translates to poor rural women. Yeakel found that the surgical center requirements would effectively ban access in parts of the state. He estimated that if the provision went into effect, the number of women of reproductive age living in a county more than 200 miles from a clinic would rise to 750,000. (It’s already gone up from 10,000 to 290,000.) If 200 miles doesn’t sound like a long drive to you, Yeakel points out that women in the border communities of the Rio Grande Valley and El Paso, many of whom are poor immigrants, would bear the brunt of the closures. He spelled out the “practical concerns” they face: lack of reliable transportation, child care, time off from work, and problems passing through interior checkpoints that operate like a second border. “A woman with means, the freedom and ability to travel, and the desire to obtain an abortion, will always be able to obtain one, in Texas or elsewhere,” Yeakel writes. “However, Roe’s essential holding guarantees to all women, not just those of means, the right to a previability abortion.”
Instead of making women safer, forcing them to travel farther to reach a clinic is associated with delaying the procedure until later in pregnancy, which increases the medical risk, not to mention the stress level. Maybe this is the place to mention that Texas is the state that cut two-thirds of its budget for reproductive health and family planning for low-income women in 2011, and saw the number of women served drop by 77 percent. Less access to abortion and birth control—quite a combination.
Texas Attorney General Greg Abbott, who just happens to be running for governor against Davis, greeted Yeakel’s ruling by filing an emergency motion to appeal. And yes, the 5th Circuit will surely weigh in, and it may knock down Yeakel’s new ruling, as it did his previous one. But who knows, because the Appeals Court’s stance on abortion access is looking pretty jumbled. One three-judge panel let Texas impose the admitting privileges rule on doctors, saying it was just fine that women would have to travel at least 150 miles to reach a clinic. Then a second panel ruled that Mississippi could not put its admitting privileges rule into effect, because that would shut the state’s only clinic, and it wasn’t constitutional for the state to argue that women could just cross the border and go to a clinic in another state.
In a narrow sense, the two rulings are compatible. One is about crossing state lines, and the other is not. But the underlying legal question—how far a state can go to restrict access without crossing the constitutional line into saddling women with an “undue burden,” in the Supreme Court’s magical mystery words—remains unresolved. Yeakel took a crack by finding that in combination, the constellation of provisions in the 2013 Texas law creates “unreasonable obstacles” that have “reached a tipping point.”
Whether the 5th Circuit goes for this argument or not, give Judge Yeakel credit for standing firm and laying it out. And maybe it will help, if this case lands in the lap of the Supreme Court and swing voter Justice Anthony Kennedy, that the evisceration of this Texas law will come from a judge who owes his seat on the bench to George W. Bush, a fellow Texan, and no friend of abortion rights.