September 15, 2014 — A federal appeals court panel on Friday heard arguments over whether Texas should be allowed to enforce a provision that likely would leave the state with no abortion facilities outside of four major metropolitan regions, the New York Times reports (Fernandez, New York Times, 9/12).
The provision, which is part of a larger antiabortion-rights law (HB 2), was scheduled to take effect on Sept. 1 and would require abortion clinics to meet the same standards at ambulatory surgical centers. U.S. District Court Judge Lee Yeakel in August barred enforcement of the provision, ruling it unconstitutional, and Texas Attorney General Greg Abbott (R) quickly appealed the ruling to the 5th U.S. Circuit Court of Appeals (Women's Health Policy Report, 9/2).
According to the Times, if enforced, the provision could close about a dozen clinics in the state, leaving Texas with seven or eight abortion facilities in four metropolitan areas: Austin, Dallas-Fort Worth, Houston and San Antonio. The Times notes that there were 41 abortion facilities in Texas -- a state with about 5.4 million women of reproductive age -- before HB 2 was enacted in 2013 (New York Times, 9/12).
The three judges on the 5th Circuit panel did not indicate on Friday when they would rule, NPR's "Shots" reports. If the state is allowed to fully enforce the provision, the affected clinics likely would have to close immediately. The judges could also permit clinics in certain areas to remain open while allowing the state to enforce the law for other clinics, according to "Shots."
Jonathan Mitchell, Texas' solicitor general, argued that Yeakel's stay on the law should be overturned while the case of the provision's constitutionality continues (Feibel, "Shots," NPR, 9/12). He said the clinics have not demonstrated that the provision places an undue burden on women's access to abortion (Lawton/Brubaker Calkins, Bloomberg, 9/12).
According to "Shots," both sides agree that enforcement of the law means that women in the Rio Grande Valley would have to travel more than 200 miles to reach the nearest abortion facility in the state, in San Antonio. However, Mitchell argued that the clinics had not provided evidence that women in the region are unable to navigate the situation or that the abortion rate had fallen as a result of the law ("Shots," NPR, 9/12).
"There have been no abortion clinics in the Rio Grande Valley for 10 1/2 months and they have found no evidence of an undue burden," he said, adding that the clinics had also failed to show that a "large fraction of the state's abortion patients will have to travel long distances" (Bloomberg, 9/12).
Mitchell said the state would suffer "irreparable injury" if it cannot enforce the law while the case over its constitutionality continues (New York Times, 9/12). Specifically, he said the state sought an emergency motion to stay Yeakel's decision because it has a compelling interest in shutting down any clinics that it considers unsafe ("Shots," NPR, 9/12).
Stephanie Toti, an attorney with the Center for Reproductive Rights who is representing abortion clinics, countered that there is "ample evidence in the court record [that shows] a decline in the abortion rate occurred after 20 of the state's 41 abortion clinics closed" (Bloomberg, 9/12).
Toti also disputed Mitchell's claims regarding the "large fraction" test, arguing that the lower court did not have to use that standard to weigh the law's constitutionality. In addition, she said that even if the test were applied, nearly one-fifth of reproductive-age women in the state would face a substantial obstacle to obtaining the procedure (New York Times, 9/12).
She added, "These seven or eight [remaining] facilities couldn't meet the statewide demand previously met by 41 clinics" (Bloomberg, 9/12).
Column: Antiabortion-Rights Laws Affect 'Real People'
In The Guardian, columnist Jessica Valenti writes that "in the midst of court decisions, a national debate over choice and lawmakers' efforts to limit abortion rights, we cannot afford to forget that there are real people affected by" laws like HB 2.
Valenti notes that HB 2 has closed "clinics that didn't just provide abortions, but low-cost reproductive health care across the board," and "women [have] suffered." For example, she cites a joint report from the National Latina Institute on Reproductive Health and CRR that found that after closures in the Rio Grande Valley, women "weren't sure where they could get birth control, Pap smears or mammograms," and some even thought that abortion had been made illegal in the state (Valenti, The Guardian, 9/12).