Thursday night, the U.S. Court of Appeals for the Fifth Circuit decreed that one of the most consequential measures in Texas’s notorious anti-abortion bill can take immediate effect, reversing a district court ruling that the provision was likely unconstitutional. The law in question requires that doctors who perform abortions have admitting privileges at hospitals within a thirty mile radius—an impossible stricture in a state where hospitals want nothing to do with the stigmatized procedure, as I explain more fully here. Women’s advocates estimate that this provision alone will halt abortions at 13 of the 36 clinics in the state. As I reported this summer, many of those closures will take place in the poorer, more rural western half of Texas, where health services for the roughly 35 percent of the population that lives there are already fewer and farther between.
“Today’s decision is a disappointing failure to protect the constitutional rights of women in Texas, who now face a health crisis of catastrophic proportions,” Nancy Northup, president of the Center for Reproductive Rights, co-counsel in the suit, said in a press release Thursday night.
The judge who blocked the law, Judge Lee Yeakel of United States District Court in Austin, called it “without a rational basis” and said it “places a substantial obstacle in the path of a woman seeking an abortion.” Under the constitution, laws cannot impose an “undue burden” on abortion, and Yeakel rightly noted that the state’s justification for the impediments it is erecting was utter poppycock: The law ostensibly protects women’s health by setting up a relationship between clinics and nearby emergency rooms, but in the less than 0.05 percent chance that an abortion results in a complication, hospitals will admit the woman, privileges or not.
Monday, the district court delivered what women’s advocates have been calling “a mixed ruling.” Though Yeakel sided with reproductive rights groups on admitting privileges, he upheld outdated and unscientific requirements on medical abortion (with an exception for life or health of the patient), which outlaw the nonsurgical procedure at 49 days instead of the customary 63, and which could discourage doctors from offering this less invasive kind of abortion at all. (Read more on medication abortion here and here.)
Women’s advocates have yet to challenge some aspects of the omnibus law that passed the Texas legislature this June, such as the 20-week ban, which outlaws abortions well before the “viability” cutoff mandated by Roe v. Wade, and which has already gone into effect. “At this point, we are monitoring what impact it’s having, but our main concern right now is to keep the clinics open,” said Janet Crepps, senior counsel at the Center for Reproductive Rights. “That means focusing on the privileges requirement. That’s going to immediately require a third of the clinics to stop providing abortions.”