Sunday, September 7, 2014

False Advertising on Abortion Clinic Laws

      If state legislatures could be sued for false advertising, lawmakers in four Southern states would be facing stiff penalties for the recent spate of laws regulating women’s reproductive health clinics. Alabama, Louisiana, Mississippi, and Texas are among the states to have recently enacted stringent regulations on abortion clinics, ostensibly to protect women’s health but evidently to try to shut the facilities down altogether.
       Federal courts have seen through the subterfuge in all four states, most recently in Texas. A federal judge in Austin has blocked major provisions of Texas’s new law that impose hospital-like building requirements on the outpatient facilities and require clinics’ physicians to have admitting privileges at local hospitals. Federal courts have put similar laws on hold in the three other southern states as well as North Dakota and Wisconsin.
       In his interim ruling issued Aug. 31, U.S. District Court Judge Lee Yeakel said that the regulations, if put into effect, would reduce “meaningful access” to abortion care for women throughout Texas, especially for poor, rural, and disadvantaged women. Yeakel said the regulations were unnecessary because abortions are “extremely safe with particularly low rate of serious complications and virtually no deaths on account of the procedure.”
       Based on those findings, Yeakel said the law runs afoul of Supreme Court precedents prohibiting abortion regulations that have an “undue burden” on women’s constitutionally protected right to the procedure. While unnecessary to his ruling, Yeakel concluded that the new building requirements in particular — likely to cost a clinic $1 million or more — were “intended to close existing licensed clinics.”
       Yeakel noted that the law grandfathered existing outpatient surgery centers that perform far riskier procedures. In other cases, courts have noted that admitting privileges for abortion providers are unnecessary and that hospitals can deny admitting privileges for any number of reasons, including opposition to abortion.
        Yeakel’s ruling is setting up a showdown of sorts at the Fifth U.S. Circuit Court of Appeals, the federal appeals court with jurisdiction over Texas and two of the three other southern states with similar litigation in recent months: Mississippi and Louisiana. A three-judge panel will hear arguments on Friday [Sept. 12] in the state’s effort to lift Yeakel’s injunction.
       The Fifth Circuit, perhaps the most conservative of the federal appeals courts, greenlighted the Texas law in an initial ruling in March. But a different three-judge panel blocked Mississippi’s admitting-privileges law from taking effect in a split decision issued on July 29.
       The two panels came to different conclusions in part based on different factual contexts. In the Mississippi case, the court found that the law would shutter Mississippi’s only existing abortion clinic (Jackson Women’s Health Organization v. Currier). The majority in that decision noted that in the Texas case a different panel had allowed the Texas law to take effect after finding that some number of abortion clinics would remain open in the state (Planned Parenthood of Greater Texas v. Abbott).
       The different results also reflect the different composition of the two appellate panels. The decision in the Texas case was written by Judge Edith Jones, a Reagan appointee and strong conservative who was on President George W. Bush’s short list for a Supreme Court appointment; two Bush43 appointees joined the decision: Jennifer Elrod and Catharina Haynes. The Mississippi decision was written by E. Grady Jolly, a Mississippian appointed by Reagan, and joined by Obama appointee Stephen Higginson; the dissenter was Emilio Garza, a strong conservative appointed to the district court by Reagan and elevated to the Fifth Circuit by Bush41.
       Yeakel had initially found the Texas law unconstitutional, but the Fifth Circuit panel ruled the measure was not unconstitutional on its face. That decision allowed Yeakel, however, to hear the pleas from individual clinics that the requirements would have unconstitutional effects as applied to them. In his new decision, Yeakel found that the law would leave the nation’s second largest state with only seven or perhaps eight abortion clinics, all in major metropolitan areas. He noted in particular that West Texas and the Rio Grande Valley would have none. Based on his injunction, the McAllen clinic was to reopen on Sept. 6.
       In acknowledging that effect, the state’s lawyers suggested that women in West Texas could drive across the state line to New Mexico, which has no comparable law. As Yeakel noted, that stance undermined the state’s argument that the law was needed to protect women’s health.
      Yeakel also skewered the state’s defense that even with the law in effect, 86 percent of Texas women would be within 150 miles of an abortion clinic. That distance was a considerable burden of itself, Yeakel said, and the burden would be all the greater because of a separate Texas law requiring a 24-hour waiting period before an abortion.
      The Texas law — known as HB 2 — was enacted in 2013 only after the nationally-watched filibuster by state senator Wendy Davis, who is now running for governor as the Democratic nominee against the state’s Republican attorney general, Greg Abbott. The case cannot be understood without recognizing the political context.
      As Yeakel notes, a woman’s right to an abortion remains controversial 40 years after Roe v. Wade; Texas’s law, he said, would operate just as drastically as a complete ban on abortions. The nation’s eyes will be upon Texas to see whether the tactic can succeed.

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