The Fifth Circuit Court of Appeals upheld Texas' omnibus anti-abortion law on Tuesday, placing all but seven of the state's abortion clinics in danger of closing. The court affirmed the law's ambulatory surgical center and admitting privileges requirements can officially take effect throughout the state, exempting only McAllen's Whole Woman's Health facility, which acts as the sole abortion provider in the economically depressed Rio Grande Valley. This decision will take effect in 22 days.
A three-judge panel issued Tuesday's ruling, nearly two years after the bill was passed by the state's zealous anti-abortion legislature. As you may recall, HB2 was the bill that brought then-state Sen. Wendy Davis to the national stage when she completed an 11-hour-long filibuster in those famous pink sneakers. Although the bill eventually passed, HB2 has been ping-ponging between federal courts, who remained divided on some of the key abortion restrictions, including the admitting privileges and ambulatory surgical center requirements.
But on Tuesday, the Fifth Circuit's decision was clear. It's a ruling that may close most of the state's abortion clinics and force roughly a million Texan women to travel hundreds of miles round-trip to obtain an abortion.
Heather Busby of NARAL Pro-Choice Texas called the decision "a travesty" that would directly impact hundreds of thousands of Texans. "Your zip code should not determine your health care," Busby said in a statement. "Many Texans will not be able to end their pregnancies safely because they do not have the time or resources it takes to travel long distances to abortion clinics."
Whole Woman's Health in McAllen, a city that borders Mexico, is the only clinic exempted from the restrictions. However, the McAllen clinic can only stay open without upgrading to an ambulatory surgical center or obtaining admitting privileges if another facility doesn't open in the Rio Grande Valley, or within 150 miles from the South Texas city, the appeals court said in its decision.
Amy Hagstrom Miller, who runs the Whole Woman's Health network, said Tuesday in a statement:
With this ruling today, the justice system and our elected politicians put a road full of unnecessary hurdles in front of every woman in Texas who has decided to end her pregnancy. ... This is simply unacceptable. Whole Woman’s Health will fight this fight and take our case all the way to the Supreme Court in order to get justice for all Texans.
Miller added that Whole Woman's Health in McAllen will stay open, as well as the Whole Woman's Health centers in San Antonio and New Mexico. The New Mexico clinic currently serves patients from West Texas.
Previously, women in the Rio Grande Valley had the option of traveling 150 miles to a clinic in Corpus Christi, which has now closed under the law. Miller testified that Rio Grande Valley residents would have to travel approximately 235 miles one-way to San Antonio to obtain an abortion if her McAllen clinic was forced to close.
The court acknowledged that extraordinary distance placed an undue burden on women seeking abortion, but claimed traveling 150 miles one-way to the nearest clinic is not an inconvenience or a barrier. The panel of judges also said they recognized low-income women would be disadvantaged by the travel and costs, but claimed the plaintiffs couldn't "establish that the law itself imposes an undue burden on at least a large fraction of women."
The appeals court also reversed the federal injunctions for Reproductive Health Services, a clinic in El Paso that closed in 2014 due to the new wave of abortion restrictions. Reproductive Health Services, which is not an ambulatory surgical center, was previously exempted from the admitting privileges restriction because the clinic is located 550 miles away from San Antonio — the nearest abortion clinic in Texas outside of El Paso. But the Fifth Circuit pointed out that El Paso residents already travel across state lines to a clinic in New Mexico, just 12 miles away, thereby erasing an undue burdens for patients.
Tuesday's decision comes eight months after the Supreme Court stepped into the fray, staying the lower court's previous decision and allowing around 20 abortion clinics to remain open in Texas. But over these next 15 days, legal analysts fear most of them will shutter one by one.
Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement:
Not since before Roe v. Wade has a law or court decision had the potential to devastate access to reproductive health care on such a sweeping scale. Once again, women across the state of Texas face the near total elimination of safe and legal options for ending a pregnancy, and the denial of their constitutional right.
Planned Parenthood said on Tuesday that it will continue operating its clinics, which meet the ambulatory surgical center and admitting privileges requirements, in Austin, Dallas, Houston, Ft. Worth, and San Antonio. "Planned Parenthood will continue to do everything in its power to protect a woman’s right to make her own personal medical decisions," said Yvonne Gutierrez of Planned Parenthood Texas Votes in a statement.
Whole Woman's Health and the Center for Reproductive Rights will seek to stay the ruling, and take their fight to the Supreme Court, if necessary. "We are more determined than ever and will stop at nothing to preserve Texas
women’s access to safe abortion care — and that includes taking this battle to
the United States Supreme Court," Miller said in a statement.