A Huge Abortion Win in Texas. But Will It Last?

The law, lawyers, and the court.
Sept. 2 2014 5:35 PM

A Huge Abortion Win in Texas

But will it last?

Photo by Jon Herskovitz/Reuters
Abortion rights activists protest outside a U.S. federal court in Austin, Texas, on Aug. 4, 2014. Will the most recent abortion victory in Texas get overturned by a higher court?

Photo by Jon Herskovitz/Reuters

Late Friday, after many of us checked out for the long weekend, a judge in Texas blocked the state from shutting down most of its abortion clinics. Judge Lee Yeakel struck down the state’s “brutally effective system of abortion regulation,” as he put it, saying it was not likely to improve women’s health, would impact poor women the most, and “would operate for a significant number of women in Texas just as drastically as a complete ban on abortion.” The judge was clear and convincing on these essential points. But his ruling, as well as another one over the weekend that’s keeping clinics open in Louisiana, may well be in danger on appeal.

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

Texas passed the collection of abortion restrictions in House Bill 2 a year ago, weeks after the famous filibuster by Wendy Davis (the state senator who is now running for governor) in her pink tennis shoes. The law has four parts. Two provisions that have already gone into effect ban abortion after 20 weeks and ban doctors from doing medical abortions by telemedicine. A third requires abortion providers to have admitting privileges at a local hospital. That one, which went into effect in March, was a big factor in reducing the number of clinics in Texas from 44 to 19 in the last three years. The fourth and final provision of the 2013 law, which would have gone into effect Monday, required all clinics to be outfitted as ambulatory surgical centers.

That means clinics have to come up with the money—between $1 million and $1.5 million each, Yeakel said—to widen hallways so patients can be carried out on stretchers, and provide large and expensively equipped recovery rooms. The surgical center requirements (like the ones about admitting privileges) are an example of far-reaching regulations that are enacted in the name of protecting women’s health and result in shutting down clinics. In refusing to go for the state’s justifications, Yeakel, who is a George W. Bush appointee, is sticking to his guns, to use a Texas metaphor. He tried to block the rule about admitting privileges last fall, only to be overruled by the U.S. Court of Appeals for the 5th Circuit. Now he is back at it, this time blocking the required retrofitting. (Yeakel also stopped the admitting privileges requirement from applying to two clinics, one in the border city of McAllen, and the other in western El Paso.)

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At trial, lawyers for Texas argued that requiring clinics to ramp up to surgical center status would make patients safer. It sounds reasonable enough, and states usually have lots of leeway to regulate the practice of medicine. But Yeakel found that the “severity of the burden” to women seeking abortions “is not balanced by the weight of the interests underlying them.” Money quote:

The great weight of the evidence demonstrates that, before the act’s passage, abortion in Texas was extremely safe with particularly low rates of serious complications and virtually no deaths occurring on account of the procedure. Giving appropriate weight to the experts’ conflicting testimony, the court concludes that concerns over incomplete complication reporting and underestimated complication rates are largely unfounded and are without a reliable basis.

Underlying Yeakel’s finding is a fight among expert witnesses that Texas deserved to lose. Yeakel called out four of the state’s witnesses over the behind-the-scenes “control” exerted by Vincent Rue. That’s because Rue, who holds a doctorate in family relations from the University of North Carolina, but not a medical degree, has been discredited by other judges for decades. Among other things, he’s a leading proponent of the disputed claim that women suffer harm from “post-abortion syndrome.” Texas has paid Rue thousands, yet other witnesses tried to mask his role in the case, denying that he helped draft documents. Yeakel expressed his dismay at “the considerable efforts the State took to obscure Rue’s level of involvement with the experts’ contributions.”

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.

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