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March 28, 2014 12:20 PM Fifth Circuit Seems to Find No “Burden” as “Undue”

By Ed Kilgore

A three-judge panel of the conservative Fifth Circuit Court of Appeals has upheld Texas’ new anti-abortion law, a classic of the genre insofar as it uses late-term abortion restrictions to mask a more general effort to shut down abortion clinics via medically dubious “health” requirements.

You can expect conservatives to make hay of the fact that all three judges on the panel are women (one of them the famous conservative judicial activist Edith Jones, who wrote the opinion). But they certainly had no sympathy for the women affected by their action, arguing that it’s no big deal if they have to travel across or beyond Texas to obtain abortion services. MSNBC’s Irin Carmon assesses the damage:

The Supreme Court has held that laws restricting access to abortion can’t put an “undue burden” or have the purpose of putting a “substantial obstacle” in the path of a woman seeking an abortion. But in a decision written by Judge Edith Jones and signed onto by Judges Jennifer Elrod and Catharina Haynes, the Fifth Circuit argued that Texas’s law wasn’t harsh enough to meet that standard. Despite the fact that the admitting privileges requirement has been rejected as medically unnecessary by the American Medical Association and the American College of Obstetricians and Gynecologists, the Fifth Circuit opinion accepted the state of Texas’s reasoning at face value - that it was intended to protect women’s health, not end access to abortion.
The Fifth Circuit wasn’t impressed at how much harder it has become for Texas women to have abortions, both because clinics whose providers have been rejected for privileges have closed outright and because clinics with doctors that have been able to get privileges are operating at reduced capacity. According to a map by RH Reality Check’s Andrea Grimes, “As of March 6, there are 25 open abortion clinics, six of which are ambulatory surgical centers, in Texas.” There were 36 abortion clinics in Texas at the time the law was passed, meaning that the dire prediction that a third of the clinics would close has come true. When requirements that abortions be provided in ambulatory surgical clinics go into effect in September, that will leave only six clinics, plus another one Planned Parenthood is building in San Antonio.

Since the 7th Circuit reached the opposite conclusion in striking down a similar law in Wisconsin, it’s now almost certain the Supreme Court will have to weigh in, giving Justice Anthony Kennedy a fresh chance to recite his paternalistic approach to women’s health, and the Court’s conservative bloc the best chance they’ve had in years to weaken the “undue burden” standard for abortion restrictions.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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