In a fitting All Hallows’ Eve turn of events, the Texas Attorney-General’s emergency motion to reinstate the controversial abortion law following Monday’s District Court decision has been granted. Feel like banging your head against a table? Here’s the link to the decision, or alternatively read on.
Last night, the United States Fifth Circuit District Court of Appeal pressed pause on Justice Yeakel’s decision that requiring physicians performing abortions to have admission privileges placed undue burden on women seeking abortions, and was unconstitutional. As a result of granting the emergency motion and staying the District Court’s decision, the Texas law at the centre of these legal debates has come into effect. Like a temporary injunction, the Court of Appeal will hear the appeal in full at a later date, and come to a permanent decision on the law. If you’re legally minded, how the Court of Appeal came to its decision is discussed in more detail below. Regardless of the outcome of that decision, it is likely that, in the words of Texas Attorney-General Greg Abbott (a leading Republican candidate for governor and the proponent of the law) “this case is going all the way to the United States Supreme Court”.
According to the Planned Parenthood Federation of America, one-third of Texas health centres providing abortions will be forced to cease providing them today. Planned Parenthood, who has 13 clinics in Texas, has already been forced to stop providing abortions at four of its clinics today, as they have been unable to find physicians satisfying the law’s required admission privileges.
In a positive turn however, the District Court of Appeal did not grant the emergency motion staying Judge Yeakel’s decision on ensuring that pregnant women who would not be suitable for surgical abortion can still access medication abortions up to 63 days from her last menstrual period. That being said, the fact that the District Court of Appeal describes these women as “mothers” demonstrates the unfortunate perspective from which the court approached this decision.
To stay or not to stay? How the Court of Appeal came to its decision
The emergency motion lodged by Texas requested that the Fifth District Court of Appeal stay the District Court’s Monday decision as if it had not been made, therefore allowing the Texas law to come into effect on 1 November 2013.
As is the case with temporary injunctions pending a full trial, a decision on a “stay pending appeal” is based on a series of tests to determine whether the stay should be temporarily granted, with a permanent decision coming at a later date. As a result, none of the actual facts of the case, “the merits”, are decided upon.
The Fifth District Court of Appeal considered four factors in its decision:
- Whether Texas made a strong showing that it was likely to succeed on the merits (i.e. is it likely to win at the later trial);
- Whether Texas will be irreparably injured if a stay is not granted;
- Whether issuance of the stay will substantially injure the other parties interested in the proceeding; and
- Where the public interest lies.
As you can see in the latter three points, in a case like this, compared to a purely commercial situation, it’s pretty difficult for the merits of the case to not be assessed to some degree. Unfortunately, as a woman’s health and human rights advocate, it’s hard not to read the Court of Appeal’s ruling as being essentially a decision on the merits, including the statement that “the district court’s finding … is not supported by the evidence, and in any event, “a legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data”. That is, legislators are completely entitled to make laws that are not based on any evidence, even if they justify the laws as being based on rational speculation. If you think that sounds a bit oxymoronic, you’d be right. Perhaps its the scientist in me, or the public health policy advocate, but when it comes to making decisions about women’s health, actual medical or other scientific evidence is critical in rationalising legislative restrictions. From a legal standpoint however, the sovereignty of the legislature is a well established element of democratic representation, and here, the Court of Appeal has made it clear that the decisions of the Texas legislature, even if based on evidence found by a court to be wanting, reigns supreme.
Fundamentally (see what I did there?), Texas pushed the argument that the laws these laws were crafted “to protect the health and safety of Texas women”. How delightfully paternalistic. While abortions may require extra protections to ensure they are carried out in a safe manner, that is due to their history as illegal and hidden procedures, carried out in unsanitary and unsafe conditions. It is the illegality of abortion that has caused these extra protections. In contemporary society, with legalised and widely available services for women’s reproductive health, abortion may be treated as any other medical procedure. As a result, the scrutiny of physicians performing abortions should be no more and no less than any other surgery or drug administration. It is the fact that abortions are singled out in these laws that demonstrates that they are discriminatory against women and in violation of their constitutionally protected reproductive rights.
The District Court of Appeal’s finding that the the State does have a case to make on the merits seems superficial. However, such conclusions are often the case with temporary measures by courts, with full analysis of the merits taking place at a later date. The problem however, is the injury experienced by women in Texas per element three the four stage test set out by the Court above. How the Court came to the conclusion that having to travel 240 km (150 miles) to obtain an abortion is not an undue burden is beyond me. When the Court proposes that women drive (or bus, or train, or bicycle, or walk) to Corpus Christi, 160 miles away from Rio Grande City, I can completely understand why women cross the border to Mexico. If Texas legislators truly cared about women’s health and safety, they would ensure that all Texan women, regardless of race or whether they live in rural or urban areas, have access to abortions. It is quite clear that none of these laws are about women’s health, and the Court of Appeal’s failure to see through this, and failure to adequately weigh the detriment to Texas women in its decision to stay, is disappointing.
Check out Amy Hagstrom Miller on the Rachel Maddow show last night talking about the ruling.