The Whole Star

I-635 flyover in Dallas
David Herrera/Flickr
More Texas commuters are avoiding scenic highway flyovers like this, where I-635 crosses U.S. 75 in Dallas.

People in big Texas cities are driving less, and riding bikes and public transportation more, according to a new study of American commuters.

The U.S. PIRG Education Fund, a consumer research group, studied commuters in America’s 100 largest cities and found that in all but one city, car commuting has declined in roughly the last 10 years. The researchers called it the “first ever national study to compare transportation trends for America’s largest cities,” and said said the study made it clear the “driving boom is over.” That’s true even in Texas, a state known for its love of cars, big trucks and highway sprawl.

The report, released Wednesday, included Texas’ five largest metropolitan areas: Austin, Dallas, El Paso, Houston, McAllen and San Antonio. Researchers based their findings on data from the U.S. Census and U.S. Department of Transportation. (You can read the full report below.)

TexPIRG—the national group’s Texas offshoot—hailed Austin as a leader in reducing the number of drivers on the road, with a decrease of 4.5 percent in the number of workers commuting to work by private car between 2000 and an average of the years from 2007-2011. Austin’s was the third largest reduction in the country.

McAllen came in next at 3 percent, followed by El Paso (2 percent), Dallas (1.2 percent), San Antonio (0.6 percent) and Houston (0.3 percent).

McAllen saw the most dramatic rise in the nation in passenger miles traveled on public transit per capita from 2005 to 2010, with a 366 percent increase. The Monitor noted that while McAllen bus ridership is growing fast, its average—0.79 miles per capita—is still far below cities with bigger bus systems. Austin residents, for instance, average 145 miles per capita on a bus.

El Paso also saw a 29 percent increase in miles traveled on public transit, followed by Austin (22.9 percent) and San Antonio (1.5 percent). Public transit miles actually decreased in Dallas by 12.6 percent, and in Houston by 7.6 percent.

Researchers also considered the possibility that the 2008 recession drove car owners to take cheaper public transit. But many cities with the biggest decreases in car commuting, like Austin, were also affected less by the recession. Urban areas with the highest unemployment, poverty and falling income didn’t correlate with declining car use. The largest reduction in drivers comes from the youngest generation with an age range of 16 to 34.

The researchers offered a few possible explanations: an increase in interest in biking and public transit from millennials, paired with the retirement of car-commuting baby boomers; more people working from home; and expectations that gas prices will remain high in the long run.

It may be hard to picture Texans outside of Austin running to public transit, but Houston Mayor Annise Parker responded to the study with enthusiasm for her city’s “aggressive approach to providing alternatives to driving,” with new light rail and bus routes, and bike-friendly initiatives in one of the country’s most spread-out cities. Pulling Texans out of their cars may not be such a stretch after all.


Arthur Laffer (left) and Gov. Rick Perry
Arthur Laffer (left) and Gov. Rick Perry

If you listen to Texas conservatives, California is a dilapidated hellscape that’s rapidly plunged into Third World status, like Bangladesh with more plastic surgeons.

At a get-together convened by the Texas Public Policy Foundation today, Gov. Rick Perry joined legendary conservative economics guru Arthur Laffer in yet another in a long list of bids to wrest control of the national consciousness from that great nemesis of our greater state — California.

Chuck DeVore, a six-year member of the California State Assembly who moved to Texas and joined TPPF in 2012, introduced Laffer, the supply-side sensei who gave to the conservative movement in the 1970s the gift of the Laffer Curve, reportedly drawn-up on a napkin.

Laffer imprinted on the Reagan revolution the argument that economic vitality and tax revenues could be grown by cutting tax rates. Laffer’s theory and its implications are hotly contested, and  many mainstream economists don’t subscribe to his interpretation of the curve.

DeVore was effusive in his praise for Laffer — he credited the economist with helping to wreck the Soviet Union. But he wasn’t the only one. Laffer related that he’d had breakfast with gubernatorial candidate Greg Abbott, and that the two were in perfect sync. Rick Perry, too. “I cannot say that there’s anyone I respect any more than Arthur Laffer,” Perry said in his opening remarks.

Last time Laffer made waves in the state, it was for less auspicious reasons. Since the end of the Reagan years, Laffer’s been getting paid for lending his name to some highly dubious business propositions. In 1990, Laffer received a fee for touting a “multi-level marketing scheme” called FundAmerica — the founder of which was charged in Florida for running a pyramid scheme. Laffer was one of several involved who were hit with a $150 million class-action lawsuit. In 2002, Forbes criticized Laffer for lending his name to Casmyn Corp, which mined gold in Zambia and Zimbabwe before imploding in catastrophic and outlandish fashion.

In 2004, he was sued for his endorsement of Qualmag, a San Diego company attempting to develop a “batteryless power supply capable of operating on static energy.” Investors said the firm was predestined to be a flop — and Laffer settled. Then, last year, 52 Texas investors sued an investment fund associated with Laffer, the Laffer Frishberg Wallace Economic Opportunity Fund, for allegedly funneling money into Biz Radio, a company also tied to Laffer, “with no hope of reasonable return.” Investors claim the company was a Ponzi scheme.

At the event today, Laffer spent much of his time comparing the economic vibrancy of California to Texas, noting that one alternate method of calculating poverty rates puts California at the top of the list. That, combined with the Golden State’s high cost of living and highly-paid public employees, proved the efficacy of the ‘Texas Model.’

California has been a mess, for a whole host of reasons, many of them relating to the awkward and convoluted way the state is governed — a bastardized kind of direct democracy — a subject that received much attention from The Economist in 2011. Many of the obstacles California homeowners and businesses face seem unreasonable — but Laffer also touted several metrics that seemed to muddle his case.

California, Laffer bemoaned, “pays educators 20 percent more than Texas.” Social workers, he said, “make over $56,000 a year. In Texas it’s $37,000 — a 53 percent difference.” It’s certainly Laffer’s right to argue that it’s better for teachers to be paid less, but it might not be the winning argument he thinks.

Perry preferred to paint with a broad brush, pointing to recent high-profile features of Texas’ rapid economic expansion.

“How many people, just a short 10 years ago, would have said, the United States Grand Prix would be in Texas?” he asked the crowd enthusiastically, referring to the Formula 1 race in Austin this weekend.

That wasn’t all Perry was taking credit for.

“There’s a reason they’re building a new performing arts facility in San Antonio, Texas, right now. There’s a reason that in Fort Worth, they built a new museum of modern art,” he said. “That Dallas has build two new performing arts facilities in the last 10 years. The American Film Institute’s headquarters is in Dallas now.

“It didn’t happen by accident. It’s because of policies we’ve put in place in the state.

“I think the debate’s over,” Perry said. “The proof is in the pudding. Texas wins.”

California wasn’t the only blue state to garner the speakers’ derision, though. Laffer slammed the administration of former New Jersey Gov. Jon Corzine, who he said he had once taught.

“Full disclosure: He was a C student,” he said. “And he may not have earned the C.”

To which Perry replied: “What’s wrong with being a C student?”

In closing, TPPF President Brooke Rollins offered the consolation of the free market to Californians. As if she was talking about a relapsed drug addict to unsympathetic friends, she intoned to the crowd: “We want California to do well.” If all those Angelenos just decide they want to get clean, “prosperity is around the corner.”

It’s worth getting the Californian perspective in this. Governor Jerry Brown famously called Perry’s efforts to woo companies to Texas “barely a fart.” Brown, who’s been increasingly praised for able leadership and California’s own changing fortunes, recently passed a budget that restored cuts to education — and even began paying down the state’s debt. The economy is coming back, and the Golden State even has its own version of Texas’ Rainy Day Fund.

But other Californians don’t take too kindly to naked derision, either. Subjecting Texas to other metrics, the editorial board of the Sacramento Bee responded to Perry’s consistent criticism this February by bemoaning Texas’ “high dropout rate, lack of health insurance coverage and economic disparities,” its status as “a state that is last in mental health expenditures and workers’ compensation coverage, first in the number of executions, first in the number of uninsured, first in the amount of carbon dioxide emitted and first in the amount of toxic chemicals released into water.”

“Texas can be better and wants to be better,” the editorial concluded. “Californians should help it out.”

Anti-Abortion Groups Receive Thousands in Funding from ‘Choose Life’ License Plates

As Texas law forces abortion clinics to turn patients away, anti-abortion centers receive $46,100 in new funds.
"Choose Life" license plate

Today Texas Attorney General Greg Abbott announced the first recipients of funding from the state’s new “choose life” license plates. Thirteen organizations from Corpus Christi to Dallas will split $46,100 generated from the sales of almost 2,300 plates. The anti-abortion groups will use the money to provide services—mostly media advertising—promoting adoption over abortion.

In 2011, the Texas Legislature authorized the sale of specialty license plates exhorting Texas drivers to “choose life.” For $30, Texas drivers can purchase a cheerful kid-drawn plate and $22 will go toward anti-abortion organizations. Non-profits bid for the cash through a “competitive grant process.”

But it’s not that competitive. Applicants that provide abortions or have any affiliation with abortion providers are specifically barred from applying. A “Choose Life Advisory Committee,” comprising seven prominent figures in the anti-choice world, picked the winners.

The lucky recipients are all crisis pregnancy centers and anti-choice maternity homes, like Aggieland Pregnancy Outreach, Inc, which will receive $5,000 for “media advertising to promote adoption and the services of the organization”, or Corpus Christi Hope House, which is getting $5,000 to provide adoption training for staff and material assistance for pregnant women.

The Texas Medical Association condemns the methods crisis pregnancy centers use to persuade vulnerable women not to have abortions. Critics contend they use manipulative tactics to promote birth or adoption and provide misleading and scientifically-biased information. For example, they tell women that abortion causes suicidal thoughts and breast cancer, although there’s no medical evidence for such claims. They subject vulnerable clients to inaccurate yet graphic descriptions of the abortion procedure. In exchange for such biased counseling, the centers give women “mommy dollars” with which to buy baby gear from their stores.

Regardless, the state bankrolls scores of centers in Texas.

In an Observer investigation last year, we reported that crisis pregnancy centers had received $26.3 million in public money since 2005. The cash comes from state budgets for family planning, health screenings and preventive care. These crisis pregnancy centers do not provide any medical care to their clients, yet charge the state more per person than a family planning clinic would. Moreover, crisis pregnancy centers prefer chastity over prevention, so they dissuade their clients from using contraception that might protect them from sexually transmitted infections or further unplanned pregnancies.

Earlier this year, lawmakers channeled another $4.15 million per year into crisis pregnancy centers. Accordingly, five new center—in Clarksville, Leander, Odessa, Sulphur Springs and Paris—have joined the state-funded rolls, increasing the current number to 53.

Meanwhile, at least four family planning clinics closed this year for lack of public funding. This adds to the 60-plus that closed last year due to budget cuts, and the 14 abortion clinics that closed this month as a result of House Bill 2.

By the numbers

By the Numbers

Priscila Mosqueda
Carlos Gutierrez arrives in Austin after traveling 12 days and 701 miles from El Paso on his Pedaling for Justice campaign.

Carlos Gutierrez rolled into Austin Saturday after a 701-mile bicycle ride from El Paso. Austin was the final destination on his 12-day ride across Texas to raise awareness about Mexican asylum seekers.

News cameras crowded around an exhausted and emotional Gutierrez as he carefully stepped off his bike and looked around, searching the crowd for his father’s face. For the next few minutes, family members and supporters took turns hugging the 35-year old cyclist.

Just two years ago a ride like this would have been unthinkable. A successful businessman in Chihuahua, Gutierrez was targeted by cartel members who demanded monthly extortion payments of $10,000. When Gutierrez could no longer pay, cartel members cut off his feet and left him to die as an example to other business owners.

Miraculously, Gutierrez survived. But to save his life his legs had to be amputated below the knees. Afterward, Gutierrez and his family fled Mexico to seek asylum in the United States. His asylum was neither granted nor denied. Instead, it was “administratively closed,” so that Gutierrez, while able to work, is in a sort of limbo until his case is reopened.

Typically, less than two percent of Mexican asylum cases are granted each year. Last year 9,206 Mexicans applied for political asylum in the U.S., and only 126 received asylum, according to U.S. Justice Department data. Carlos Spector, the El Paso immigration attorney who is representing Gutierrez, says the reason so few cases are approved is political. If the U.S. starts granting asylum to Mexicans, he says, it would be admitting that violence really does exist in Mexico and that the war on drugs has failed.

In exile in the United States, Gutierrez was struggling to adjust to life in a wheelchair. Then one day he met Eddie Zepeda, a prosthetic specialist, who pledged to help Gutierrez walk again with the help of prosthetic legs. Zepeda provided all of his services free of charge. Gutierrez refers to Zepeda as his guardian angel.

Carlos Gutierrez hugs his mother after completing his journey to Austin.
Priscila Mosqueda
Carlos Gutierrez hugs his mother after completing his journey to Austin.

Gutierrez has come a long way since then, training for months to ride across Texas and raise awareness about the violence and impunity destroying the fabric of Mexican society. To bring attention to his situation and that of thousands of other Mexicans fleeing violence and seeking asylum here, he embarked on his Pedaling for Justice campaign in late October.

“I’m not here to point the finger at anyone; simply to alert the government as to what’s going on with the Mexican people,” Gutierrez said. “People from other countries are granted asylum as soon as they touch American soil, but not us Mexicans. Because even with the circumstances we’ve lived through – in my case the attempt on my life – it isn’t enough to get asylum. I don’t think it’s fair that it’s this way for Mexicans just because we are from a neighboring country.”

The war on drugs that started in 2006 has claimed thousands of Mexican lives and has forced thousands more to flee their homes. But Mexicans continue to be denied asylum because judges argue they are not fleeing political persecution, but are tortured, kidnapped or threatened in their home country only for economic gain. Thus, it isn’t the state that’s persecuting victims, but common criminals. Gutierrez’s lawyer Carlos Spector disagrees.

“Asylum law doesn’t reflect the Mexican reality, which is that much of the extortion is possible because of the relationship with the state. ‘Authorized crime’ really reflects reality much more than the concept of ‘organized crime.’ Organized crime implies that there are bad criminals on one side and good guys, like cops, on the other. In reality, authorized crime better describes what we’ve seen – that organized crime is not possible without the complicity of the municipal, state and federal police.”

Because the police is an extension of the state, Spector says, and because the police is often responsible for acts of violence or allows acts of violence to occur with impunity, the state is responsible for what happens to victims of organized crime. That, he says, makes it political persecution.

Spector, who started the nonprofit advocacy group Mexicanos en Exilio, or Mexicans in Exile, won the first-ever asylum case for a Mexican national in 1991. Since then, he’s been able to win political asylum for more than a dozen people, including victims of violence in the Juarez Valley and Mexican journalists who exposed organized crime.

Gutierrez joined Mexicanos en Exilio when he moved to El Paso two years ago, and later had the idea of cycling across Texas to educate U.S. lawmakers about the desperate situation so many Mexicans find themselves in in their home country. He’s trying to combat the misconception that some lawmakers have that asylum-seekers are trying to abuse the legal system in order to gain lawful status in the country.

“We’re not here because we wanted to be or because that was our inclination,” Gutierrez said. “The circumstances that led me to this country were that I had my feet mutilated. This isn’t a game, we’re not playing with the law, with justice, with the system at all – this is the reality.”

Gutierrez says he set out on this ride to help other people in the same situation he’s in. Now that his long journey is behind him, he wants to do something bigger to help more victims of drug violence, especially ones who like him have suffered a physical disability at the hands of organized crime.

“People keep asking me, ‘What’s next?’” he said at the press conference today in Austin. “Something big. It doesn’t stop here. I won’t stop until God stops me. No one else and nothing else can stop me, only God.”

The Houston Ship Channel in December 2010.

As Houston makes plans to expand its port, residents near the Houston Ship Channel are bracing themselves. The predominantly Hispanic and black East Houston neighborhoods bordering the port are already exposed to some of the worst air pollution in the country, and not without consequence. A recent survey, conducted by the Healthy Port Communities Coalition, found that residents of five neighborhoods surrounding the Ship Channel suffer from higher rates of cancer and respiratory illnesses than average Texans.

The findings reinforce what people in these neighborhoods have known or suspected for many years, but they also come at a critical time for the Port of Houston. Along with other port cities, Houston is preparing for the expansion of the Panama Canal, slated to be complete by 2015. Record-setting freight activity is already underway at the Port of Houston.

Los Angeles, Miami and Houston are among the many cities investing millions in huge dredging projects to make their channels deep enough for the “post-Panamax” ships that will soon sail into their harbors. But with more (and much larger) vessels come greater diesel emissions, and Ship Channel residents worry their hard-hit communities will only suffer more with increased air pollution. Diesel exhaust has been linked to respiratory and heart disease, and is a known carcinogen.

According to the report, which analyzed self-reported health data from nearly 400 people in Houston’s East End, Fifth Ward, Denver Harbor, Manchester and Pasadena neighborhoods, adults in those areas suffered from asthma and other respiratory diseases at more than twice the rate of other Texans. And while 3.69 percent of Texan adults have been diagnosed with cancer, the survey puts the cancer rate in the Ship Channel at 5.61 percent.

Last month, the World Health Organization officially added air pollution to the list of known carcinogens. According to the organization, air pollution was responsible for more than 220,000 lung cancer deaths worldwide in 2010, and also increases the risk of bladder cancer. Scientists have long known that air pollution can lead to or exacerbate heart disease and respiratory diseases such as asthma.

But because some pollutants have unclear and wide-ranging effects on human health, and because diseases like cancer can have a variety of causes, it’s difficult to trace specific medical conditions to particular pollutants. In Houston, people aren’t just exposed to one pollutant, but to a variety of potentially toxic emissions from a vast industrial complex that includes refineries and chemical plants. Despite recurring health problems, more than half of those surveyed said they didn’t have health insurance.

Elena Craft, a scientist with the Environmental Defense Fund of Texas, says although the study can’t pinpoint the sources of East Houston residents’ medical conditions, it sheds light on an alarming concentration of illness that requires immediate attention.

“We know there’s an increased risk [in the Ship Channel], but to pinpoint is more difficult, especially on self-reported data,” Craft says. “It would take further investigation to get a better handle on the extent of the issue and where there might be more serious problems.”

Craft, who was not involved with the study, says she hopes it will empower area residents to demand change. She says many sources contribute to Houston’s air problem, not just the port, but that residents could pressure the port authority to actually start addressing emissions, the way Southern California homeowners did in the early 2000s.

In 2006, the ports of Los Angeles and Long Beach together adopted a comprehensive clean air action plan to drastically reduce emissions and encourage the development of clean technologies. It was an unprecedented victory for both area residents and environmentalists, especially since the San Pedro Harbor was Southern California’s single biggest source of air pollution and Los Angeles has long been the nation’s smoggiest city.

Through cutting vessel emissions, replacing old diesel trucks with new or retrofitted trucks, and investing in initiatives like electrified docks that ships can plug into, the ports have exceeded their emissions reduction goals for some pollutants. By 2012, the two ports had cut their diesel particulate matter emissions by 77 percent (eliminating 645 tons) from 2005 levels, sulfur oxides by 88 percent (4,675 tons), and nitrogen oxides by 56 percent (9,154 tons). When seven terminal operators violated San Pedro Bay’s new diesel emissions standards, they each paid $1 million in cleanup costs as part of a settlement reached in 2011.

It’d be a rather monumental stretch to imagine the Port of Houston Authority adopting measures as aggressive as Los Angeles’, not to mention actually enforcing them to the point of fining companies for environmental violations. But in its report, the coalition does make some recommendations that could be a good starting point for cleaning up Texas’ biggest port and most polluted major city.

First, the coalition says the port authority needs to be a leader in reducing emissions, partly by giving preference during bidding to contractors with clean practices. It also recommends setting up emissions reduction goals and installing fence-line monitors to help enforce federal air-quality standards. Houston should follow the Los Angeles-Long Beach Ports’ example, the coalition suggests, by phasing out old diesel trucks and introducing electricity to ports so ships can conserve diesel fuel while docked.

The Port of Houston Authority came under scrutiny last year after a critical report by the Texas Sunset Advisory Commission. During the last session, the Texas Legislature passed a bill that set term limits for board commissioners and fired four of the seven commissioners. Two of the remaining three members had recently been appointed, so only one of the commissioners currently on the board has been there for more than a year.

Fresh blood could be a good sign, but Craft says so much change makes it to hard to predict what the board might do. The body says it values environmental stewardship and that it has taken measures to clean up the air. But Houston remains in non-attainment of federal air quality standards, and environmentalists say the port area has a long way to go.

“I think there’s all kinds of questions that this report can raise to the port authority,” Craft says. “If I were the port authority I would be incredibly concerned.”

March in favor of a non-discrimination ordinance outside San Antonio City Council meeting.
Forrest Wilder
March for a non-discrimination ordinance in San Antonio

In his last few sessions in the Texas Legislature, former state Rep. Warren Chisum, a conservative Republican from Pampa, filed legislation to chip away at no-fault divorce. Before he left the Legislature in 2012, Chisum sought to strengthen marriage by making it more difficult to divorce. Chisum also happened to be among the most outspoken anti-gay members of the Legislature and the architect of the state’s 2005 ban on same-sex marriage and civil unions.

Much has changed since Chisum began his marriage crusades. Fourteen states now recognize marriage equality and, following this summer’s landmark U.S. Supreme Court ruling in United States v. Windsor, so does the federal government. Windsor has sparked a number of lawsuits around the country, challenging both state bans on same-sex marriage and the recognition of marriages performed in other states. Despite these bans, thousands of legally married same-sex couples now reside in states, like Texas, that prohibit marriage equality. While many states grapple with whether same-sex couples can get married, Texas is deciding whether same-sex couples must stay married.

As it turns out, Texas’ anti-gay policies may create something very close to Chisum’s ideal of lifelong marriage—but, ironically, only for same-sex couples. Texas’ laws against same-sex unions may have the perverse effect of keeping same-sex couples bound in marriage.

Today, the Texas Supreme Court addressed the question head-on: Even though Texas does not recognize same-sex marriage, must it authorize divorce?

The case at issue, J.B. v. H.B., involves two men who married in Massachusetts and lived in Dallas at the time they filed for divorce in 2009. Although the divorce is uncontested between the parties, Texas Attorney General Greg Abbott intervened to stop the court from granting the divorce. Abbott contends that the state’s ban on same-sex marriage strips any Texas court of the ability to hear the divorce. Attorneys for the couple would have Texas treat the right to marry as distinct from the right to divorce. They also argue that prohibiting access to courts for the purpose of divorce violates due process and equal-protection rights.

Abbott’s position is that the only legally valid way for a same-sex couple to end their marriage in Texas is to void it. Unlike a divorce, voiding a marriage nullifies it from its inception—legally, it’s as if the marriage never took place. In Texas, marriages between blood relatives or with a married individual are legally void. Thus, Abbott would have Texas treat same-sex marriage on par with a marriage involving bigamy or incest. The problem with this position is not just that it demeans the relationship (intentionally, no doubt).

Marriage creates rights and obligations with respect to each other’s property and person. Unlike divorce, voiding the marriage does not provide a wholesale remedy for separation, precluding the couple from fully disentangling from each other’s lives and starting anew. For example, while the couple’s marriage may be void in Texas, they could continue to accrue debt and property as a couple in the state in which they married. Perhaps more important than property rights, without divorce individuals may not be able to re-marry. One Texas court explained that to deny divorce is to place the couple “in a prison from which there was no parole.”

Voiding marriages is not unprecedented in Texas. However, as Abbott acknowledges, voiding a marriage does not provide the same “robust protections” as divorce. Abbott would treat divorce as a special right of marriage reserved only for heterosexual couples. And, yet, as much as Texas may wish to close its eyes to same-sex marriage, the marital relationship is still a legal fact. The couple is legally married according to the laws of many states and the federal government, and therefore, subject to numerous legal rights and responsibilities related to marriage.

Though Texas may wish to ignore it, married same-sex couples are entangled in much the same way as other married couples and, thus, the “robust protections” of divorce are a practical necessity in order to adequately dissolve the marriage. Without this, the couples’ lives may remain inextricably bound, creating a multitude of unforeseen problems in the long term—problems that will inevitably require courts and lawyers to resolve.

And this is exactly what the state proposes: Abbott’s solution is to leave it to lawyers and the courts to iron out in piecemeal fashion. The result will be a court-constructed process of dissolving same-sex marriage that will essentially duplicate some, but not all, of the legal rights and protections offered through divorce—a “skim milk” divorce, if you will. At the same time, it will take countless billable hours and legal fees to work out the inevitable conflicts that will arise due to failure to finalize the marriage.

Texas’ stubborn resistance to the inevitable push toward marriage equality will be responsible for a mountain of unnecessary legal complications while depriving the couple of the right to resolution and finality that comes with divorce. Of course, Texas same-sex couples could decide to simply endure an unworkable relationship. Warren Chisum would be proud.

Elizabeth Brenner is an attorney in Austin, Texas. She graduated from University of Texas School of Law in 2003. 

Texas’ Anti-Abortion Law Lands at Supreme Court (Updated)

Abortion rights advocates argue that law has caused “unprecedented havoc” in Texas. State has till November to respond.
Access to Planned Parenthood

Update (Nov. 4 at 12:44 p.m.):
The fate of one-third of Texas abortion clinics now sits in the hands of Antonin Scalia.

A coalition of women’s health advocates today filed an emergency appeal with U.S. Supreme Court Justice Antonin Scalia, asking him to overturn a lower court’s decision requiring abortion providers to obtain admitting privileges to nearby hospitals. It’s the latest in a rapidly developing legal battle over House Bill 2, the strict anti-abortion law passed by the Texas Legislature in July.

In a joint filing by the Center for Reproductive Rights, Planned Parenthood and the ACLU, petitioners argue that women seeking abortions have been irreparably damaged by the admitting privileges provision of House Bill 2.

Plaintiffs argued in their emergency application that “in just the few short days since the injunction was lifted, over one-third of the facilities providing abortions in Texas have been forced to stop providing that care and others have been forced to drastically reduce the number of patients to whom they are able to provide care. Already, appointments are being cancelled and women seeking abortions are being turned away.”

The plaintiffs ask Justice Scalia to vacate the Fifth Circuit Court of Appeal’s Oct. 31 decision to allow the admitting privileges provision to go into effect, asking instead that District Judge Lee Yeakel’s earlier permanent injunction on the grounds of unconstitutionality be allowed to stand.

The emergency application to Justice Scalia, who handles emergency appeals against Fifth Circuit decisions, asks him to make a temporary decision about the legality of the admitting privileges law until the Fifth Circuit can hear full oral arguments about House Bill 2 in January 2014. If the Fifth Circuit rules in favor of the state, the plaintiffs may again appeal the case to the U.S. Supreme Court.

Justice Scalia has given the state of Texas until Nov. 12 to respond to the emergency appeal. This means that many abortion clinics will remain closed until a decision is made. The plaintiffs said that they were disappointed by this delay because of the devastating impact of clinic closures on women trying to access safe, legal abortions. A lawyer for the ACLU noted in a press conference today that the law had caused “unprecedented havoc” among abortion providers in Texas.

The impact of the Fifth Circuit’s decision last Thursday has already reaped dramatic results. Ken Lambrecht, president and CEO of Planned Parenthood of Greater Texas said that his clinic staff had cancelled 100 patient appointments last Friday. He noted that his patients were scared and angry and didn’t know how they would make the long trek to the nearest abortion provider. Lambrecht said that some of those women had lost earlier access to contraception because of state mandated cuts to family-planning services.

Marni Evans, a 37 year-old freelance consultant based in Austin, was scheduled to have an abortion at the Planned Parenthood surgical clinic on Friday. Though she and her fiancé hope to have children in the future, their financial status means that they aren’t in the best place to have a child now. “The decision for me or for any woman to have an abortion is not easy. It’s very complicated,” she said. She had already undergone the state-mandated sonogram and 24-hour wait when she received the message from Planned Parenthood that her abortion had been cancelled. Evans said she was devastated. She plans to use the frequent flier miles she had saved for her honeymoon to fly to Seattle to access the abortion she is unable to obtain in Texas.

Amy Hagstrom Miller, CEO and president of abortion provider Whole Woman’s Health, had to cancel 45 patient appointments at three of her clinics on Friday. She said that she knows of 14 clinics in Texas that are not currently able to provide abortions because of their inability to gain admitting privileges.

The earliest that Judge Scalia could issue a decision is the middle of next week. He may make the ruling individually or refer the case to the entire U.S. Supreme Court for consideration. In the meantime, abortion providers that don’t have admitting privileges at nearby hospitals won’t provide abortions in Texas.

Update (Nov. 1 at 4 p.m.):

At a press conference Friday afternoon in Austin, Amy Hagstrom Miller of Whole Woman’s Health confirmed that three of her five clinics in Texas have stopped providing abortions.

The clinics’ offices are still open because they are continuing to provide follow-up appointments to previous abortion patients. She warned that she would have to furlough half of her staff because the clinics couldn’t remain financially viable now that they cannot provide abortions, which comprise 90 percent of their services. Whole Woman’s Health can’t provide the full spectrum of women’s health care because it doesn’t receive state family-planning funds as a result of their abortion work.

Hagstrom Miller said that plaintiffs would appeal the Fifth Circuit’s decision to the U.S. Supreme Court, but she didn’t know how long it would take for them to review the case. In the meantime, Whole Woman’s Health is currently researching how the donations they have received from across the country today can be put toward gas cards or bus tickets for the many patients who now have to travel vast distances to access abortions.

She expressed particular concern for her patients in the Rio Grande Valley, all of whom have lost access to abortion services today. (There are no longer any clinics in the Valley offering abortions.) Many clients are in the U.S. legally, but their visas don’t allow them to leave the region. Even if they could afford to travel to the closest clinics in San Antonio or Corpus Christi for an abortion, she said, document restrictions wouldn’t allow them to get through the border checkpoints. “This bill did nothing to address the need for abortions,” she said, but it will drive desperate women to choose clandestine and unsafe methods of ending their pregnancies.

Original story:

In a devastating ruling for abortion-rights supporters, the U.S. Fifth Circuit Court of Appeals late yesterday evening overturned a lower court’s block of a key provision of Texas’ restrictive abortion law. The provision, which requires all abortion providers in Texas to have admitting privileges at a nearby hospital, can take effect immediately. Abortion-rights advocates say the requirement could force 13 clinics to stop offering abortions.

Providers had successfully argued in U.S. District Judge Lee Yeakel’s court last week that the admitting privileges requirement is not only medically unnecessary, but has been bureaucratically impossible to achieve for many abortion doctors. Accordingly, on Monday, Yeakel ruled the provision unconstitutional.

However, the conservative Fifth Circuit overturned Yeakel’s decision at the request of Attorney General Greg Abbott in what’s known as an emergency stay. The three-judge panel waited until late on Halloween to announce its decision. The Fifth Circuit will hear oral arguments from plaintiffs and defendants in January before it makes a final ruling on the disputed provisions of Texas’ abortion law. The case could end up before the U.S. Supreme Court.

In a statement last night, Heather Busby, executive director of NARAL Texas, outlined the impact. “Tomorrow there won’t be a single clinic open in Fort Worth or the Rio Grande Valley, in Lubbock or Waco or Killeen. More clinics will close in Dallas, Austin, San Antonio and Houston. The clinics that remain open will be met with both an increase in need for their services and the challenge of meeting that need with fewer providers, because not all the doctors who have been working at these clinics have admitting privileges. Many women will not be able to get the care they need or will have to wait longer for appointments, pushing them further along in their pregnancies, putting them at risk.”

Conversely, Gov. Rick Perry’s statement was triumphal. “Today’s decision affirms our right to protect both the unborn and the health of the women of Texas. We will continue doing everything we can to protect a culture of life in our state.”

His statement reinforces the state of Texas’ position that the law is about protecting women’s health and safety. But the potential closure of up to 13 clinics shows the law’s actual purpose: to make legal abortion unavailable for many Texans. The Fifth Circuit may have just helped the state accomplish that goal.

Jen Reel


In the limestone plaza outside Austin’s City Hall last night, more than 200 orange-clad workers and supporters rallied with signs and banners while rush-hour traffic stopped and started. One worker paced back and forth, rehearsing the statement he’d deliver to the Austin City Council hours later.

Led by the Workers Defense Project, Austin Interfaith, various unions and other organizations, the workers were there to tell the council to stop giving companies tax breaks unless those companies start protecting workers and paying a fair wage. It was the culmination of five years of work for labor groups in the city, and it paid off. At the end of the night, the City Council passed a resolution making Austin the first city to add comprehensive protections for workers into its corporate-incentive program.

Part of the so-called Texas Model is using generous financial incentives, such as tax breaks, to woo corporations from other states. The city of Austin is hardly immune, doling out millions in incentive deals to companies like Visa and Apple and to developers building large projects like the JW Marriott downtown. While these companies receive millions of taxpayer dollars over a period of years, they continue to pay the people constructing their buildings less than a living wage, and fail to offer basic safety training and workers’ compensation.

The workers demanded the city not give companies looking to build in Austin economic incentives unless they agree to certain conditions during construction: adopt a living wage floor (currently $11 per hour), pay a prevailing wage that would provide a ladder up from a living wage as workers get training and experience, obtain workers’ comp insurance, hire hard-to-employ workers, and offer basic safety training.

The incentives discussion started at 7 p.m. and ran past 11:30, mostly because of the number of speakers. People delivered statements for nearly three hours, after which the council finally started discussing the resolution. Councilman Mike Martinez sponsored the resolution to change the incentives program.

“Yesterday what passed is landmark legislation that should be a model for the rest of our state to follow,” said Greg Casar, Workers Defense Project’s political director, ”because Texas by far gives more tax incentives [than other states] in the country, while the working people that build Texas aren’t allowed to make enough money to make ends meet and aren’t allowed a safe work site.” He added that Texas, already the deadliest state for construction workers, saw an increase in deaths this year. “The city took a critical and historic step last night to make sure that our tax dollars are really benefitting all of Austin and all the people who are paying taxes rather than just the corporations receiving the tax breaks.”

Over the past few years, Workers Defense Project has successfully lobbied to have companies receiving tax incentives adopt basic worker protections and pay fair wages. But because the conditions weren’t part of the city’s official incentives program, it was easy for companies to wiggle out of providing the protections.

Requiring companies to pay a prevailing wage was by far the most contentious point in the resolution and dominated much of the discussion last night. The business representatives speaking against the resolution were on board with safety training and workers’ comp, but they blasted the prevailing wage requirement as a job killer. Mayor Lee Leffingwell said he shared the concern and opted to make prevailing wage a “bonus” condition a company could adopt to get extra incentives, rather than making it a requirement.

“I don’t know how many jobs this will cost,” Leffingwell said. “Great opportunities would be lost if this is passed without this specific change. The folks in this room will be worse off because they won’t have a job at all.” There was a barely discernable collective grumble at that point, and workers around the room shook their heads incredulously.

For a while it seemed like most council members might agree with Leffingwell and nix the prevailing wage requirement. Then Councilman Chris Riley proposed making the prevailing wage condition something companies can apply to be exempt from, and the council can decide whether to grant them an incentive if they meet other requirements. That amendment passed.

Martinez’s resolution finally passed 6-1, with Leffingwell voting against. A smaller version of the crowd that had filled the City Hall lobby hours earlier erupted into applause, chants and cheers.

The council’s vote represented another victory for the innovative model of labor organizing practiced, and polished, by the Workers Defense Project. Texas has never been a union stronghold, and some of the toughest, lowest-paid work is done by undocumented immigrants. But Workers Defense has found non-traditional ways—through protest, public shaming and working with local officials—to extract better wages and conditions for its members.

“What this really means is construction workers, and these organizations in the city and state are starting to advocate for themselves and that we do collectively have the power to negotiate for a better deal at work,” Casar said. “That’s something that we’ve seen fading away in Texas for decades and we hope this is a sign that we’re headed in the right direction.”

Fire at the Citgo Refinery in Corpus Christi on July 19, 2009.

Six years after Citgo Petroleum Corp. became the first major oil company to be criminally convicted by a jury for violating the Clean Air Act, the company may finally be sentenced this month. Residents who were exposed to harmful emissions from Citgo’s Corpus Christi refinery have been awaiting a sentence. The hearing in federal court opened last week in Corpus with their testimonies.

The hearing marks the first time that victims of an air pollution crime have been awarded protection under the Crime Victims’ Rights Act and allowed to share testimony in court. The Citgo case could open the door for other air pollution victims to claim that status in environmental justice cases around the country, says Melissa Jarrell, a professor of criminal justice at Texas A&M-Corpus Christi.

The unusually long sentencing hearing is scheduled to continue through the end of the month. In 2007, Citgo was convicted of violating the Clean Air Act after an inspection revealed that the company had been illegally storing oil in two uncovered tanks for 10 years, and, unbeknownst to the residents, releasing harmful chemicals like benzene into the air. Residents of the fenceline communities surrounding the refinery, who attribute a spectrum of health problems to consistent and prolonged exposure to toxic chemicals, feel they’ve been denied justice. They are eager to see Citgo punished for its crimes, and are also seeking restitution from the company.

Jean Salone shared her story at the hearing last Wednesday, and she also testified at Citgo’s trial in 2007. Her house is two and a half blocks east of the refinery, in the Hillcrest neighborhood where she has lived for more than 50 years. She told the Observer that during the time Citgo was illegally operating the tanks, a strong smell woke her up in the middle of the night and she called to report the incident to the TCEQ. Salone says her granddaughter, who lives in Austin, has to stay with friends when she visits Corpus because her asthma prevents her from being at her grandmother’s house for too long.

“She tells me, ‘You don’t go nowhere to die, grandmother,’” Salone says. “People are believing and hoping that we’ll get out – that [Citgo] will buy us out or something.”

Suzie Canales, an environmental activist in the area, agrees that most residents want out of Hillcrest. “What the judge needs to do is make a statement here and what we’re hoping he does is relocate the people to safety and away from Citgo,” she says. “Anything less than that would be an injustice. Since [the conviction in] 2007 Citgo haven’t been good neighbors.”

U.S. District Judge John D. Rainey, who presided over Citgo’s criminal trial, will determine the sentence. Rainey will almost certainly make Citgo pay a fine, and he’ll set the conditions of the company’s temporary probation. The judge can also order the company to pay the victims restitution or even relocate residents. There’s no limit to how much he can order the company to spend on restitution, but for now, he’s capped the financial penalty he can impose on Citgo at a level that prosecutors and victims find inadequate.

Last year, Citgo celebrated a victory when Rainey granted the company’s request to block the federal government from seeking the highest possible monetary sentence. Citgo argued its punishment should be limited to paying the statutory maximum of $500,000 per felony count, which amounts to $2 million, chump change for a multi-national oil company. The U.S. Justice Department calculates that Citgo raked in $1 billion in profits during the time it was violating the Clean Air Act, and tried to set the maximum penalty at twice the “gross, pecuniary gain,” or $2 billion. Rainey said empaneling a jury to evaluate Citgo’s financial gain would prolong the sentencing process, and capped the penalty at $2 million.

“[If] a company like Citgo makes $1 billion violating the Clean Air Act and gets sentenced to a $2 million penalty, that is not a deterrent to future violations of the Clean Air Act,” says Bill Miller, a former EPA attorney who worked on the Citgo case but has since retired. Because corporations can’t do jail time, the threat of prohibitive financial penalties is one of the few ways to deter them from committing crimes, Miller said.

He predicts that in the coming weeks, the prosecution will try to show that Citgo has “continued to violate the Clean Air Act with impunity because they’re not being penalized for violations.”

Miller points to other Clean Air Act violations Citgo has committed since being convicted, including most notably an accidental release of at least 4,000 pounds of the highly corrosive and poisonous hydrofluoric acid in 2009. Few residents were notified of the release, and Citgo initially reported only 30 pounds of hydrofluoric acid had leaked. Residents complained of nausea, dizziness, burning throats and other problems at the time of the leak.

Rainey is expected to deliver a sentence next week, but either Citgo or the Department of Justice could appeal. In the meantime, Hillcrest residents are hanging on for good news.

“You put your trust in God,” Salone says. “That’s all you can do.”