The victory for pro-choicers in Texas was short-lived. On Monday, District Court Judge Lee Yeakel found that the new abortion regulation requiring doctors to have hospital admitting privileges was unconstitutional. Last night, the Fifth Circuit Court of Appeals reversed that decision, ruling that the law can go into effect immediately while it's working its way through the courts. That means that, as of Friday morning, up to a third of abortion clinics in the state—many in rural areas—will have to close their doors.
Judge Yeakel blocked the hospital admitting requirement, writing that the provision is "without a rational basis and places a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." The Fifth Circuit disagreed, claiming the regulations are there for the same reason any medical regulations are, for patient safety. The New York Times reports:
The appeals court said that the admitting privilege rule might “increase the cost of accessing an abortion provider and decrease the number of physicians available to perform abortions.”
But it cited a Supreme Court statement in an earlier abortion case that if a regulation serves a valid purpose, the fact that it has “the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it.”
The panel of judges also claimed that the new law was "not designed to strike at the right itself."
If so, they should tell that to Texas Solicitor General Jonathan Mitchell, who defended the law in front of Judge Yeakel and argued that blocking women's access is, in fact, the point of the law. As reported by Andrea Grimes of RH Reality Check:
As proceedings began, Texas Solicitor General Jonathan Mitchell said that not only does the state contend that HB 2′s provisions are necessary to protect the health of Texas women, but the state has a vested interest in “protecting the life of the unborn child,” and therefore has the right to impose “inconveniences on women seeking abortion in hopes that it may lead women considering abortion to opt for childbirth instead.”*
In order to "opt" for anything, one must have a choice, and for women who cannot afford to travel for hours and take multiple days off work to get an abortion now that the closest clinic is closed, choice is removed from the equation. For those women, the better phrase is "to be forced to give birth instead."
Other women will decide that, since the state has removed legal abortion as an option for them, inducing miscarriage at home—usually through ulcer medications brought over from Mexican pharmacies—will be preferable to suffering childbirth. This method is largely effective if done correctly, but unfortunately information to do it correctly is hard to find. Funny how these new "health regulations" leave women with two choices—illegal abortion or unwanted childbirth—that are both well-known to be less healthy than legal abortion.
*Correction, Nov. 13, 2013: This post originally quoted Texas Solicitor General Jonathan Mitchell as reported by Andrea Grimes in RH Reality Check as saying that the state has the right to impose "inconveniences on women seeking abortion in hopes that it may lead women considering abortion to consider childbirth instead.” Grimes misquoted Mitchell, who actually said, "in hopes that it may lead women considering abortion to opt for childbirth instead.” The quote has been fixed and the post has been updated.
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