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Fragile victories for abortion access in the South

In Texas and Louisiana, as in neighboring states, conservative lawmakers are facing off with the federal courts -- and so far, they're mostly losing.
Abortion rights activists demonstrate outside the floor of the Texas State House after the HB2 bill restricting abortion rights passed in Austin, Texas on July 9, 2013.

In a single weekend, with temporary wins for abortion providers in Louisiana and Texas, one fact became ever clearer: The federal courts are the only thing standing between conservative lawmakers and a woman's right to an abortion. For now, the news is good for abortion access in the region, but it is a fragile shield -- one that may be breached in a matter of days.

In Baton Rouge on Sunday, district court judge John W. deGravelles granted a temporary restraining order to three of Louisiana's five abortion clinics, who faced closure as they try to comply with a law requiring abortion providers to have admitting privileges at local hospitals. Meanwhile, in an emergency motion Sunday, the state of Texas asked the famously conservative Fifth Circuit Court of Appeals to reverse an Austin district judge's eleventh-hour decision on Friday, which prevented the closure of a majority of abortion clinics in the state and allowed at least one to reopen.

Texas, represented by attorney general and gubernatorial candidate Greg Abbott, argued that the lower court judge, Lee Yeakel, ignored the fact that the Fifth Circuit previously said that driving 150 miles was not an "undue burden" on Texas women, the Supreme Court's standard for rejecting an abortion restriction. The law was meant to go into effect Monday; the state asked the Fifth Circuit to rule on its status by Friday. 

The Texas omnibus abortion law, the same one that Abbott's Democratic opponent Wendy Davis filibustered, already devastated abortion access across the state when its admitting privileges requirement was allowed to go into effect by the Fifth Circuit and the U.S. Supreme Court in November. There were 41 abortion clinics in Texas before the law took effect, and that number has since dropped to 19. The latest requirement to turn abortion clinics into mini-hospitals -- which experts call medically unnecessary, and which would be financially impossible for the majority of providers -- would have left seven or eight clinics in the second-largest state. That would mean that 930,000 women of reproductive age would live more than 150 miles from an abortion clinic. 

“The practical impact on Texas women due to the clinics’ closure statewide would operate for a significant number of women in Texas just as drastically as a complete ban on abortion," wrote Yeakel, a George W. Bush appointee, in his Friday decision. The Supreme Court has repeatedly said that banning abortion before fetal viability is unconstitutional. 

Yeakel also said that a separate provision of the same law, which required Texas abortion providers to obtain admitting privileges at local hospitals, was unconstitutional as applied to two clinics in McAllen and El Paso. Whole Woman's Health, which had to close its clinic in McAllen in March after its providers' applications were rejected, said Sunday it would reopen there, and that its clinics in Fort Worth and San Antonio, threatened with closure under the ambulatory surgical requirement, would stay open. 

Much depends now on the Fifth Circuit, where the three judges that heard the prior provision of Texas law shrugged off the burden on women, but where more recently three different judges allowed the last clinic in Mississippi to stay open under threat of a similar admitting privileges law, saying a state could not delegate constitutional rights to its neighbor. Indeed, Texas had made a similar argument to Mississippi, despite the fact that most of its neighbors, with the exception of New Mexico, were adopting similar laws to close clinics. 

Yeakel called out the contradiction in that argument: "If the State’s true purpose in enacting the ambulatory-surgical-center requirement is to protect the health and safety of Texas women who seek abortions, it is disingenuous and incompatible with that goal to argue that Texas women can seek abortion care in a state with lesser regulations. If, however, the State’s underlying purpose in enacting the requirement was to reduce or eliminate abortion in parts or all of Texas, the State’s position is perfectly congruent with such a goal."  

The decision in Louisiana is a more provisional one, hinging on a technicality, since that state gave clinics only eighty-one days to comply with the law and hospitals have no obligation to reply within that timeframe. "It is therefore impossible for these doctors, notwithstanding their best efforts, to comply with the law before the effective date of the statute," wrote deGravelles, a Barack Obama appointee. One provider in the suit actually has admitting privileges but said he would stop providing abortions if he were the last provider in the state out of fear for his safety. Another one of the doctors told the court that he was told by the Chairman of the Family Medicine Department at one hospital that his application for privilege has been “met with resistance.” That has matched the experience of abortion providers in other red states, where many hospitals either fear controversy or oppose abortion outright. 

Like Mississippi and Texas, Louisiana falls within the Fifth Circuit, which in its first Texas decision also claimed the state didn't have to show that the restrictions were medically necessary, instead inventing a "rational basis" legal test. Earlier this month, a federal district court in Alabama delivered a strong rebuke to the same law there. Ultimately, the admitting privileges laws are likely to go before the Supreme Court, where Justice Anthony Kennedy is, as usual, expected to have the last word.