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.
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.