Perhaps you are wondering what, exactly, is terrible and stupid and wrong about the Fifth Circuit Court of Appeals’ decision to shut down pretty much all of Texas’s abortion clinics? Sit back, grab a slut pill, and let Kaili Joy madsplain you.
In a sickening but not at all surprising decision on Thursday, the 5th Circuit Court of Appeals ordered to close the majority of abortion clinics in Texas.
The law, known as H.B. 2, was signed by Gov. Rick Perry in 2013. Supporters of the law claimed it would make abortions safer for women — by making it all but impossible for women to have abortions. You know: for their own good.
Once upon a time — like, last year — the state had 41 abortion clinics. It’s down to about six. For women’s “safety.”
Under H.B. 2, doctors who perform abortions must have admitting privileges at a hospital within 30 miles of where the abortion is performed, so that in the extremely unlikely event that something goes wrong during the procedure, and the doctor must rush his or her patient to an emergency room around the corner for drastic life-saving measures, he or she will also be able to operate on her there. It’s irrelevant that (a) abortion is one of the safest medical procedures performed in this country; and (b) this “necessary” requirement only applies to doctors who perform abortions. No concern exists for any other types of doctors who perform other types of medical procedures. Weird, right?
The law also requires abortion clinics — and only abortion clinics — to “be equivalent to the minimum standards adopted for ambulatory surgical centers.” That means if a clinic does not have the right types of hospital beds, or does not meet the architectural requirements of an ambulatory surgical center, which many abortion clinics do not, then it can be fined and/or put out of business.
If you think that requiring a certain type of hospital bed for women undergoing an abortion in any way affects their safety and well-being, you might just be dumb enough to be governor of Texas. He recently claimed that if the lower court had not issued the stay, and the law had been in effect, Joan Rivers might still be alive. (Joan Rivers did not die from an abortion.)
Despite the blatantly transparent attempt by Texas Republicans to shut down the state’s abortion clinics, and despite the overwhelming evidence that enforcement of this law will impose a number of burdens on Texas women seeking to exercise their legal right to an abortion, the Circuit Court did not agree. The court relied heavily on the Supreme Court’s 2007 decision Gonzales v. Carhart to insist that when a legislature says it’s just looking out for the ladies, you can’t argue with that. Even if they’re lying. Even if they’re wrong.
For those who have yet to tattoo it on their brains, the Carhart decision upheld the “Partial Birth Abortion” Ban. There is no such thing as “partial birth abortion”; that’s a term invented by politicians to make a certain combination of procedures used during certain abortions sound really BAD and SCARY and icky. The predominantly male court upheld the ban and created a legal precedent commonly cited in other cases regarding abortion restrictions. The opinion was authored by Justice Anthony Kennedy, who famously wrote:
While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.
There was no reliable data, but the judges felt justified in assuming that of course women must regret their abortions, and therefore, the government had an overriding interest in protecting them from their hypothetical future regret.
No reliable data. Remember that as we review some of the highlights from the 5th Circuit’s Thursday decision. It’s important. Because the 5th Circuit uses the Carhart decision to come to many of its conclusions. And the rule according to Carhart is that “reliable data” doesn’t really matter.
The plaintiffs who sued the state said that because the laws served no legitimate purpose and in no way made abortions safer, it was pretty obvious that the legislature was simply trying to impose so many rules and regulations that abortion clinics would have to shut down. That was the whole point. That is always the point of these types of laws, which are always introduced and supported and enacted by politicians who outright tell us how much they want to make it impossible for women to have abortions.
But the court didn’t see it that way:
The district court cited no record evidence to support its determination that the ambulatory surgical center provision was enacted for the purpose of imposing an undue burden on women seeking abortions, nor did it make any factual finding regarding an improper purpose.
The legislature’s “stated purpose was to improve patient safety.” Why would anyone doubt that? Aside from all the evidence that shows the law doesn’t actually improve patient safety. See, that evidence was not “clear and compelling” enough for the court to doubt the legislature’s stated purpose. The evidence offered to show how many clinics would be shut down, or had already been shut down, was not clear and compelling enough. The evidence that such restrictions do nothing to improve women’s safety was not clear and compelling enough. The evidence that women would, and already were, facing additional burdens as a result of the law was not clear and compelling enough.
In other words, there is nothing clear and compelling enough for this court to question whether the legislature was really concerned with women’s health or actually just trying to ban abortion by any means necessary.
After all, the court said, it had previously found that “the State of Texas has an ‘interest in protecting the health of women who undergo abortion procedures.'” And obviously, the health of women who undergo abortions is jeopardized if the hospital bed in the clinic is not up to surgical standards. Obviously.
And then there’s the math.
The district court “conclude[d] that 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.” […] However, under this circuit’s precedent, and Carhart, a “significant number” is insufficient unless it amounts to a “large fraction.”
We needn’t get into the legalese of how and when and why to apply the “large fraction” equation to determine whether enough women are burdened by a law that maybe the law is a bad idea. According to this court, the math was done all wrong anyway, and while some women might be burdened by the lack of access to an abortion clinic — what with almost all of them being shut down — that “fraction” or “significant number” just isn’t enough to matter. And besides, the court is pretty sure that the expert who testified about the effects of the law did his numbers all wrong anyway.
Plaintiffs’ expert, Dr. Daniel Grossman, opined that the ambulatory surgical center provision would increase driving distances for women generally, noting that after the provision becomes effective, 900,000 out of approximately 5.4 million women of reproductive age in Texas would live at least 150 miles from the nearest clinic. […] He did not testify specifically about how many women seeking abortions would have to drive more than 150 miles or whether that number would amount to a large fraction. […]
Assuming that women seeking abortions are proportionally distributed across the state, Dr. Grossman’s evidence suggests that approximately one out of six (16.7%) women seeking an abortion will live more than 150 miles from the nearest clinic.
If that sounds like some sort of nightmare “if a train leaves Chicago at 11:32” word problem from elementary school, it pretty much is. But the court doesn’t care about showing its work; it’s just “assuming” that’s how the math works out because the court doesn’t like the way the plaintiffs did their math. See, using the plaintiffs’ math, why, that actually supports the plaintiffs’ argument! And the court can’t have that.
Plaintiffs argue that the appropriate denominator in the large fraction analysis consists only of women “who could have accessed abortion services in Texas prior to implementation of the challenged requirements, but who will face increased obstacles as a result of the law.” To narrow the denominator in this way — to essentially only those women who Plaintiffs argue will face an undue burden — ignores precedent.
The “precedent” the court cites, by the way, is its own earlier decision related to this case. But let’s continue with The Math:
Here, the ambulatory surgical center requirement applies to every abortion clinic in the State, limiting the options for all women in Texas who seek an abortion. The appropriate denominator thus includes all women affected by these limited options. Moreover, Plaintiffs’ suggested approach would make the large fraction test merely a tautology, always resulting in a large fraction. The denominator would be women that Plaintiffs claim are unduly burdened by the statute, and the numerator would be the same.
So because all women in Texas could conceivably be affected by the law, it is incorrect to assume that the number of women who could be affected by the law is all that big. Got that?
The court also dismisses the argument that closing most of the state’s abortion clinic creates a burden on those existing abortion clinics. Why? Because Dr. Grossman clearly hasn’t considered all the hypotheticals that the court, in its infinite wisdom, has considered.
Dr. Grossman simply assumes, without evidence, that these centers are currently operating at full capacity and will be unable to accommodate any increased demand. Likewise, Dr. Grossman did not consider how many physicians with admitting privileges from non-ambulatory surgical centers will begin providing abortions at the ambulatory surgical center clinics, thereby increasing those clinics’ capacities.
Silly Dr. Grossman — why didn’t he think of that? Those other abortion clinics are probably empty most of the time anyway and absolutely ready and able to take on all those new patients. Hey, that could be true. And what about all those other doctors who don’t currently perform abortions, but who will be lining up to start performing abortions because, well, it could happen? Even though there are fewer and fewer doctors in this country who are trained to perform abortions, or who are willing to perform abortions because it means risking their own lives and safety every single day, enduring the harassment and terrorism from the “pro-life” movement. But never mind all that. It could happen.
Even though, one might say, there is no reliable data to support it.
There’s even more good news for women, according to the court. It’s certainly possible that new abortion clinics, with the appropriate surgical standards and hospital bed sizes, will start popping up all over the state, and every woman in Texas will be able to get an abortion just down the street. Dr. Grossman, the court says, never even “considered the possibility of additional capacity resulting from new clinics’ being built.” Really, how hard can it be to make those changes or just build a new clinic from scratch? Let’s let the court tell us:
The district court also found: (1) the construction costs of bringing existing clinics into compliance with the minimum standards for ambulatory surgical centers “will undisputedly approach 1 million dollars and will most likely exceed 1.5 million dollars”; (2) “the cost of acquiring land and constructing a new compliant clinic will likely exceed three million dollars” for existing clinics that cannot comply due to physical space limitations[.]
But whatever. Sure seems reasonable to assume, even though no reliable data exists, that all those women who will have to drive more than 100 miles to the nearest code-compliant abortion clinic shouldn’t have to wait long before there’s a new one right down the street. And when you’re pregnant — and the state has very specific regulations that are part of the exact same law at issue about when you can have an abortion, based on “substantial medical evidence [that] recognizes that an unborn child is capable of experiencing pain by not later than 20 weeks after fertilization,” even though that “substantial medical evidence” does not exist, but again, why would anyone question the facts or intent of the legislature, right? — it’s not like time is of the essence. Except, oh wait, IT IS.
The court’s bottom line? Sure, some abortion clinics have shut down. Sure, more will be shut down because they can’t comply with these regulations once the stay is lifted and the law is upheld (and the court is pretty sure it will be). Sure, women will have to travel farther distances to get to the nearest abortion clinic. Sure, that might be a burden for some of them. Sure, there might be no actual health benefits for women from any parts of this law.
But so what? The mostly male legislature — the same one who told state Sen. Wendy Davis to sit down and shut up when she tried to filibuster this heinous law — say they care about women. They say it’s for women’s own good. And their health! And their safety! So really, how could the court possibly argue with that? Despite all the reliable data to the contrary.
If this makes you as mad as hell, little lady, why, is there something you can do? You can make sure the next governor of Texas won’t try to shut down all the abortion clinics. Republican state Attorney General Greg Abbott will. Just like the current governor, he supports H.B. 2, he opposes all abortions, and even though it cost the state millions of dollars in federal funding for Medicaid, he and Gov. Perry refused to comply with Obamacare. He even filed a lawsuit on behalf of the state to try to get out of it.
And if he wins in November, you can be quite sure that, just like Gov. Perry, he will call his Republican legislature in to vote on “emergency” bills to finish off what’s left of abortion access for Texas women.