The Fifth Circuit Just Stuck A Knife In Roe v. Wade | ThinkProgress

The other day I posted this, Texas family beat 14-year-old rape victim for six hours to induce an abortion.  In my opening I briefly mentioned the lack of access to legal abortions, referencing the attached ruling. As it pertains to Texas, I overlooked much minutiae, in regards to Roe v Wade, a gaping hole.

First Texas,,,

Lachman, in her HuffPo piece, focused on "provisions [of Texas HB-2] requiring clinics to meet hospital-level operating standards and requiring providers to have admitting privileges at local hospitals."  Specifically how they relate to clinics in McAllen and El Paso, "that women living near those cities would have to travel over 200 miles to access the procedure in larger urban areas like San Antonio or Houston."

What is intriguing, the contrast Lachman points out,

A different 5th Circuit panel had previously ruled that Mississippi could not enforce its admitting privileges law because enforcement would cause the state's only abortion clinic to close. The court said it was unconstitutional for the state to delegate constitutional rights to its neighbors. In the Texas decision, the courtsaid the Texas and Mississippi cases were "distinguishable" because theformer would still have multiple clinics in operation if the admitting privileges provision was in effect.

In other words, the 5th Circuit Court is splitting hairs, "it was unconstitutional for the state to delegate constitutional rights to its neighbors", regardless of whether "[p]rior to H.B. 2, more than half of the women who obtained abortions at the Santa Teresa facility were from El Paso."

"The closest Texas abortion facility that will remain open is in San Antonio, over 550 miles away," the court wrote. "There is an abortion facility approximately twelve miles away in Santa Teresa, New Mexico.

Which brings us to Millhiser's and his analysis that fills in some holes concerning Texas.

HB2 is crafted to appear like a health regulation, even though it does little to actually advance the public health. The two provisions challenged in Whole Woman’s Health include a requirement that abortion doctors have admitting privileges in a nearby hospital, and a list of expensive architectural and other requirements that abortion clinics must comply with in order to operate. There is little evidence, however, that either provision actually advances the goal of making abortion safer for women. To the contrary, a federal district judge determined that “there is no rational relationship between improved patient outcomes and hospital admitting privileges,” and he reached similar conclusions with respect to the portions of the law regulating clinic facilities. 

Before HB2, Texas had 40 licensed abortion clinics. If the law takes full effect, “only seven facilities and a potential eighth will exist in Texas that will not be prevented . . . from performing abortions.” This reduced access to abortion, according to the same district judge, “almost certainly cancel[s] out any potential health benefit associated with” HB2 because of “[h]igher health risks associated with increased delays in seeking early abortion care, risks associated with longer distance automotive travel on traffic-laden highways, and the act’s possible connection to observed increases in self-induced abortions.”

When this case goes to SCOTUS, it will be up to our esteemed justices to determine whether "legitimate state interest" is at stake in this instance (Planned Parenthood v. Casey, 1992)

The American Medical Association (AMA) and the American College of Obstetricians and Gynecologists (ACOG) recently submitted a joint amicus brief opposing the law, stating that “H.B. 2 does not serve the health of women in Texas but instead jeopardizes women’s health by restricting access to abortion providers.”  Medical experts confirm that legal abortion care in the U.S. is extremely safe, with less than 1 percent of patients requiring care in an emergency room.

That brings us to Roe v Wade and a issue I never considered, at least not in the direct manner Millhiser presents.

In 2013, Texas enacted HB2, which is one of a number of sham health laws passed by anti-abortion lawmakers who believe that they found a loophole in the Supreme Court’s abortion cases. Though current Supreme Court precedent forbids laws that impose an “undue burden” on the right to choose, states may enact legitimate health regulations that govern abortion providers — and for good reason. Abortion facilities, just like any other medical facility, should be sanitary, safe and operated by competent medical personnel.

Millhiser cites Gonzales v. Carhart (2007) a ruling in which,

Kennedy’s opinion,,,gives lawmakers “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” The upshot is that the question of how to protect a woman’s health during an abortion is no longer left entirely to her doctor — much of it is now left to members of Congress or state lawmakers who are free to resolve “uncertainty” among physicians in favor of their personal policy preferences.

What may sound like a bit of snark on Millhiser part is actually quite important in the world of legal mumbo-jumbo, "The upshot is that a state can defeat a facial challenge to an anti-abortion law so long as it raises enough of a smokescreen suggesting that its impact on women’s health is uncertain."  This is referring to Millhiser delineation between the two forms of constitutional challenge, "A 'facial' challenge seeks to invalidate a law entirely; while an 'as-applied' change merely argues that the law cannot be applied to a particular plaintiff or plaintiffs."

Maybe it is time for Choice advocates to get down-and-dirty looking for semantic loopholes.

The Fifth Circuit Just Stuck A Knife In Roe v. Wade | ThinkProgress