The Long View, Part 2

“If you can, help others; if you cannot do that, at least do not harm them.”  – Dalai Lama

We wondered what the fallout would be. We were warned.

I wrote in July that the threat of a wire coat hanger had reappeared. Hyperbolic? Perhaps at the time but in retrospect I think not shrill enough. Senator Davis’s filibuster and the attempts by Senators Watson and Van Putte to stop the vote on SB5 had only delayed the inevitable; Gov. Perry rushed to call a second session where HB2 (formerly SB5) was introduced early to thwart another filibuster. It passed and Perry signed it with a flourish of self-righteous rhetoric.  And while I had anticipated that the conservative judges of the Texas 5th Circuit Court would uphold the statute, I also assumed a delay in implementation as the law made its way to the Supreme Court. Planned Parenthood (in concert with several other pro-choice groups) had already announced that it would contest HB2 as unconstitutional: an undue burden on Texas women.  But three judges on the 5th Circuit Court overruled an injunction and allowed the law to go into effect while its constitutional basis was still being debated.

The initial result: 13 of 36 clinics have closed due to the hospital admitting requirement and more (perhaps as many as 37 of the 42 clinics that provide abortions in Texas) will be forced to close once the ambulatory requirements kick in on Sept. 1 (there are only 5 clinics in the state that meet the surgical center parameters).

Voltaire said, “No snowflake in an avalanche ever feels responsible.” 

So now we start to hear the stories of women struggling to end an unwanted pregnancy by any means at their disposable – means limited by legislation that clearly follows TRAP standards of restricting abortions by compromising providers. TRAP laws (Targeting Regulation of Abortion Providers) impose  “unnecessary and burdensome regulations on abortion providers—but not other medical professionals—in an obvious attempt to drive doctors out of practice and make abortion care more expensive and difficult to obtain.” It is legislation designed to restrict access to abortion because it seeks to  “limit the provision of care only to doctors, require doctors to convert their practices needlessly into mini-hospitals at great expense, limit abortion care to hospitals or other specialized facilities, rather than physicians’ offices, an impossibility in many parts of the country, and/or require doctors to have admitting privileges at a local hospital with nothing requiring facilities to grant such privileges.” (Pro-Choice America)

HB2 obviously follows this prescription. The hospital admitting privileges and the surgical center standards add to earlier TRAP legislation that requires a doctor to preform a sonogram and present a patient with “informed consent” literature, and then mandates a 24-hour waiting period prior to the procedure.

TRAP laws can be found nationwideOther states have passed similar laws that attempt to restrict access to abortion either through unnecessary procedures or burdensome regulatory standards.  Some of these laws have already been to court, while others are currently being contested as unconstitutional, largely on the complaint that they amount to an undue burden on women seeking an abortion.  All have been initially challenged by pro-choice advocates and in most cases judges blocked the implementation of the statute  pending legal review. My early optimism regarding the passage of HB2 was that it would meet the same fate; even before its passage, Planned Parenthood, the Center for Reproductive Rights and the ACLU had announced they would contest the law.

But the 5th Circuit Court in Texas overruled U.S. District Court Judge Lee Yeakel’s injunction and allowed the admitting privilege provision of HB2 to go into effect before the court would hear the case – a clear indication of the 5th Circuit Court’s leaning. The Supreme Court backed the 5th Circuit’s play and across Texas abortion clinics began to close as doctors struggled to find hospitals that would grant them admitting privileges within the proscribed 30-mile radius.

On the surface that restriction might not seem onerous. But even in a large city, it is likely to be. It should be noted that while doctors were given less than 90 days to obtain admitting privileges, hospitals have 170 days to decide whether to extend them. And because state law allows hospitals  to set individualized criteria for privileges, and since even in large urban areas some hospitals don’t want to be too closely associated with abortion providers (some because they are supported by religious institutions and others because they don’t want the negative publicity), meeting that requirement can be difficult. In small towns across Texas that seemingly innocuous provision is shuttering doors in areas that already suffer from a limited supply of clinics that perform abortions.

For example: the Rio Grande Valley has no abortion providers and women seeking abortions are being re-routed to San Antonio, approximately 240 miles away. And although the mandatory 24-hour waiting period is waived for women who must travel more than 100 miles to reach a clinic, women now face not only with the cost of the abortion but added travel expenses. Despite Judge Edith Jone’s flippant attitude, transportation can be a serious issue (though certainly not the only one for many people in the Rio Grande Valley, where the average income hovers around $10,000 annually).

“Be kind, for everyone you meet is fighting a harder battle.”  – Plato

Restrictions on RU486

Furthermore, restrictions on dispensation of RU486 (Mifepristone), commonly called “The Morning After Pill,” also present a burden.  Mifepristone is a two-pill medication administered to induce a miscarriage, generally within the first trimester of a pregnancy. Prior to HB2, a nurse practitioner could dispense the first pill and give women the second dose to take 48 hours later. Due to new provisions which only allow physicians to dispense RU486, women are now required to make 3 trips to the clinic to obtain the medication to induce an abortion: first for the mandatory ultrasound and to establish that the pregnancy doesn’t exceed the new 20-week gestation period before receiving the first dose; again to obtain the second pill; and finally, a new mandatory follow-up visit 14 days later (previously, a patient would only return due to complications). Additionally, since many abortion providers already travel the state to serve multiple clinics, it is difficult to adhere to the provision in the law that requires the patient see the same doctor for all three visits.

The effect of these new regulations can already be seen in a surge in the use of Misoprostol (an ulcer drug) to self-induce abortion. Though not intended for that purpose, if administered properly it successfully results in a miscarriage approximately 85% of the time. But when it fails, a surgical abortion becomes a necessity.

Proving an Undue Burden: Casey and the Undermining of Roe

“I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it.” –  Thomas Jefferson

TRAP laws, by their very nature, impose undue burdens; it is what they are designed to do. Under the guise of protecting women’s health, TRAP laws act to restrict access to abortions by increasing the cost of an abortion (due to mandated expensive upgrades to clinics) and limiting providers (when clinics that can’t afford the upgrades shut down). So how, with Roe still standing, did the state accomplish such a deep intrusion on women’s choice?

Roe v. Wade established that a woman’s right to privacy included the decision over whether to terminate a pregnancy. But Harvard Graduate and JD Candidate Emma Freeman explains that it didn’t establish an unqualified right; the trimester framework set by the court was an attempt to balance the rights of the woman with the interests of the state by allowing women greater autonomy during the first trimester while increasing the state’s interests as a pregnancy advanced. TRAP laws have sought to increase the state’s ability to impose regulations earlier than the trimester framework initially permitted.  They have been successful due in large part to the misapplication of the 1992 decision of Planned Parenthood of Southeastern Pennsylvania v. Casey, where the Supreme Court ruled in favor of a new “undue burden” review that weakened the protection so long afforded by Roe.

How? When a statute is introduced that is challenged under the Equal Protection Clause, there are three standards of review that might be used to evaluate the legislation and determine its constitutional validity. The first is rational basis review, the default scrutiny that only seeks to determine that the legislation relates to a legitimate state interest; it basically functions as a rubber stamp for legislation because it does not look at the means or ends of the statute to determine justification or impact (Freeman 282). Next is intermediate scrutiny, where a substantial association between the legislation and state interests must be demonstrated and means and ends are evaluated; intermediate scrutiny is usually triggered by equal protection claims (283). Finally, the most rigorous is strict scrutiny, where the legislation must “serve a compelling state interest” as well as represent “”the least restrictive means available”; strict scrutiny is the most rigorous and is generally reserved for legislation that impacts “fundamental rights” (284).

Strict scrutiny had traditionally been applied to legislation that contested Roe as it fell under the fundamental right to privacy. But when the Supreme Court introduced – yet declined to clearly define – the concept of undue burden with regard to the state’s ability to regulate abortion, it undermined Roe. Undue burden didn’t trigger strict scrutiny the way privacy did and it allowed the courts to assess legislation under the least stringent method (rational basis review). Thus, regulations that were never assessed on means and ends but merely passed a litmus test of relating to state interests were upheld.  The potential of the court’s undue burden standard – one that proposed to assess both the legitimacy of the state’s interest and the effects a statute would have on women – was a hollow shell.

Freeman argues that this was not the Court’s intent, asserting that, taken in context of previous rulings,  legal scholarship, and the language in both majority and dissenting opinions in Casey, the Supreme Court meant to establish “a strong standard of review” that offered an alternative method of review between rational basis and strict scrutiny: a new intermediate scrutiny that incorporated substantial association between the legislation and the state’s interests and not only evaluated but also assessed the relationship between the means and ends (297-300). Such an application would make it unlikely that TRAP legislation would survive a constitutional challenge. But the current application of undue burden, coupled with its vagueness, lends greater latitude to the state’s intrusiveness on women’s lives. An undue burden is difficult to discern without a substantial analysis of whether a regulation “would have either the purpose or the effect of placing a substantial obstacle before a pregnant woman seeking to obtain an abortion”(Freeman 290). 

The result: in the guise of state’s interests, legislation has been passed that places multiple barriers before a woman seeking an abortion. Proving a undue burden is hard; it is subjective, individual, and in the hands (and ideology) of the judge(s) who might hear the case. And that is another burden women now bear.

Conclusion

“There is nothing noble in being superior to your fellow man; true nobility is being superior to your former self.”  – Ernest Hemingway

In my previous post  I questioned the motives of those who would insist on abstinence-only education while restricting access to (and disseminating misinformation about) birth control methods that would go a long way toward reducing the abortions they claim to abhor. I wondered how much the increased state interference with a woman’s right to choose was rooted in punishment – a mandated prescription for morality, a public shaming for sexual activity:

“There seems to be a pleasure  – self-righteous, to be sure – in administering both judgment and  consequence for behavior, with a nodding sympathy for ‘victims’ (cases of incest, ‘legitimate’ rape, or imminent death) who are – this time – excused.”

Given the wealth of ignorant and/or misogynistic comments (check out some of the worst offenders here) offered by the proponents of legislative roadblocks to women’s autonomy, I suspect less-than-noble motives behind the rhetoric that such measures seek only to ensure women’s health. As Dr. Mary Edwards Walker pointed out, men were not the protectors of women for, if they were, “Who would there be to protect us from?”

Unlikely to overturn Roe, legislators – heavily funded by the antichoice crowd – now seek to bury a woman’s right to choose under a mountain of regulation. TRAP laws reveal the method; behind them lay the intent, based in self-appointed righteousness and the notion that some know better than others how to live.

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