By Lenna Webb
The future is still uncertain with only two options open to those fighting to preserve Texas women’s right to have access to clinics that can perform abortions without facing undue burden. Those options are to appeal to the whole 5th Circuit Court of Appeals or take it to the United States Supreme Court. With the current composition of today’s 5th Circuit and the Supreme Court, the outlook is far from optimistic for several reasons. (Late breaking note – this is being appealed to the Supreme Court).
The issue upon which the 5th Circuit based their ruling was about whether the women of Texas would face an undue burden if Texas is left with only eight clinics able to perform abortions. According to findings from the Texas Policy Evaluation Project at the University of Texas, the courts’ ruling will mean that more than one million Texan women will live greater than 150 miles from a legal abortion facility. However, the three-judge panel wrote that there was insufficient evidence that a “large fraction” of women seeking abortions would face an unconstitutional burden because of the surgical-center requirements and clinic closings. They wrote that the data provided by one of the plaintiffs’ experts, Dr. Daniel Grossman, suggested that about one out of six Texas women seeking an abortion would live more than 150 miles from the nearest clinic if the surgical-center rules went into effect. “This is nowhere near a ‘large fraction,’ ” the panel wrote.
At issue is the Supreme Court decision, Planned Parenthood v. Casey written by Sandra Day O’Connor in 1992 established the “undue burden” standard, which says that a state can restrict abortion so long as the restrictions don’t impose an undue burden on women. Jeffrey Toobin; lawyer, author, and legal analyst for CNN and The New Yorker wrote: “The members of the Fifth Circuit panel seem to believe that anything short of a nationwide ban on abortion does not amount to an undue burden on women’s rights. This is the argument that will soon be heading to the Supreme Court.”
The Fifth Circuit is one of the most conservative federal courts in the country, (Think Progress) and it includes several judges who are particularly unfriendly to pro-choice arguments. Of the fifteen current justices, two were appointed by President Clinton and three by President Obama. There are two vacancies which have not been filled. But by 2016, seven of the Republican-nominated judges will have turned 65, making them eligible for “senior status,” a voluntary semi-retirement that would allow Obama to appoint their successors.
But this case would come before the full court long before 2016 and given the Republican opposition to judicial appointments the outlook is not good.
The second option of taking the case to the Supreme Court is certainly fraught with problems. The 5th Circuit Court practically begged the Supreme Court to take the case and to narrow abortion rights nationwide. And, it is clear from their opinion that they are very confident the Supreme Court will take their side if the justices agree to hear this case. We all dread a 5 – 4 ruling!!
I know this all is very depressing! It all comes back to the very basic first step in all political action.. VOTE. Talk to every woman you know and let them know how important having access to abortion clinics if that is the woman’s CHOICE, is. Remind them of the repercussions of self-induced “coat hanger” abortions that were so common before Roe v Wade. This is not a red vs blue issue. It is a WOMAN’S RIGHTS issue. So spread the word and get everyone you know to the polls on November 4th!