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Court reviews Texas abortion restrictions

The laws that survived Wendy Davis's filibuster go before a fiercely conservative three-judge panel today. But lots of damage has already been done.
Protesters rally before the start of a special session of the Legislature in Austin, July 1, 2013.
Protesters rally before the start of a special session of the Legislature in Austin, July 1, 2013. 

NEW ORLEANS -- On Monday morning, the constitutionality of two of Texas’s abortion restrictions is being debated in a federal appeals court here. But for Texans seeking abortions, the full weight of the law, most of which is already in force, is anything but theoretical.

In the Rio Grande Valley, Whole Woman's Health CEO Amy Hagstrom Miller told msnbc, doctors are struggling to care for women who have complications from self-induced abortions. Her clinic there, in McAllen, was one of two in the border region that had to stop performing abortions because of the law’s requirement that abortion providers have admitting privileges at a hospital within 30 miles.

“I can’t even get the hospital there to send us an application,” said Hagstrom Miller.

Women keep showing up anyway. All she can offer them is a gas card and bus tickets to San Antonio, four and a half hours away and at least a two-day affair, what with Texas’s forced ultrasound and waiting period requirements.

All this is because the same Fifth Circuit court that will hear today’s oral argument allowed the full law to go into effect while it is being litigated. That decision reversed a lower court, which found the admitting privileges requirement unconstitutional. Despite the fact that the admitting privileges provision was expected to, and indeed has, frozen a third of the state’s abortion providers, a 5-4 majority of the Supreme Court declined to block the law. The Court did, however, signal that it was likely to eventually take the full case, which also challenges a medication abortion restriction. (It does not challenge the 20-week ban that was part of the same law.) 

For now, three Fifth Circuit judges – all female, all appointed by Republican presidents, and all of whom have shown a hostility to reproductive rights in the past – will question attorneys for the state and for several abortion providers challenging the law. 

Today’s oral argument has a political subtext, too: Democrat Wendy Davis’s opposition to the law was the springboard for her current campaign as governor. The lawsuit bears the name of the Republican she is running against, Greg Abbott, who as attorney general is tasked with defending the law, though he isn’t expected to be present in the courtroom.

The question before the Fifth Circuit is whether the two provisions violate the Supreme Court’s precedent that though a woman has a constitutional right to an abortion, the state can place on her all barriers if they're not an “undue burden.” What an “undue burden” actually is depends on which judge you ask. 

Attorneys for the abortion providers argue if the “undue burden standard means anything, it must mean that a law that forces a third of the providers in the state to cease providing abortions and prevents over 20,000 women a year from accessing safe abortion services is unconstitutional.” They're urging the appeals court to follow the decision by the district court that there was no evidence that the provision would advance women’s health. 

The American Medical Association and the American College of Obstetrics and Gynecology agreed, saying in a friend-of-the-court brief that the law “is not based on scientific facts or the best available medical knowledge.”

Though Texas brought in two doctors to disagree with that claim, it nonetheless says it doesn’t even have to prove that the laws have a basis in medical necessity. “It is not the state’s burden to ‘show a valid purpose’ for its law,” the state writes in its appeal.

The state also argues that even if one third of Texas women aren’t able to obtain abortions, that still isn’t bad enough to meet the undue burden standard – because that's still less than half.

Two of the judges who will hear the case today have already signaled their views by voting to let the law immediately go into effect. The third, Edith Jones, upheld Texas’s forced-ultrasound-before-abortion law, and who was the subject of a rare ethics inquiry following remarks she made suggesting African-Americans and Latinos are "predisposed to crime." 

Despite a lineup stacked against her case, the Center for Reproductive Rights’ Janet Crepps, who will argue today’s case on behalf of the clinics, told msnbc, “We’re hoping that on further reflection and consideration, the Fifth Circuit will find that the district court did do the right thing,” by finding the law unconstitutional.

The judges will have the opportunity to question attorneys for both sides for up to 20 minutes each, and are expected to issue a written opinion in the coming weeks. If, as expected, the outcome is the same as their ruling on the stay, in favor of the state, the next stop for the clinics will be the Supreme Court. 

Last month, the Seventh Circuit Court of Appeals found a similar admitting privileges law in Wisconsin to be unconstitutional; if Wisconsin appeals, that case could be headed up to the Supreme Court alongside Texas'.

But Texas may be enough. The four Justices who were outnumbered in their vote to reinstate the District Court’s temporary blocking of the law – Justices Breyer, Sotomayor, Ginsburg and Kagan – wrote in their dissent that  “at least four Members of this Court” would vote to hear the case. Four votes are all it takes.

Meanwhile, on the ground in Texas, the handful of abortion providers who have been able to gain admitting privileges are scrambling to meet the demand. “The same number of women still need abortions,” said Hagstrom Miller.

Two of her employees have been working full time on the morass of paperwork and differing admitting privileges requirements at each hospital. Her Fort Worth clinic recently reopened when one doctor got privileges -- but he has a full-time job elsewhere and can only come to Texas on the weekend. 

“We had 100 people come the first day we reopened,” said Hagstrom Miller. “It was like New York, pre-Roe.”

The worst may be yet to come. The state only just issued specific regulations requiring that all abortions be performed in ambulatory surgical centers, authorized under the same omnibus abortion bill. According to Hagstrom Miller, of the 23 clinics with physicians who have admitting privileges, there are only six that currently have that certification, which can costs millions to achieve. An estimated 60,000 Texan women seek abortions every year.