Fifth Circuit pretends to hear HB2 appeal

We’re all sure what their decision will be, right?

Appellate judges on Monday challenged lawyers over provisions of Texas’ new abortion law and whether they have unduly caused the closure of about a dozen abortion clinics.

The three-judge panel of the U.S. 5th Circuit Court of Appeals bore down in particular on the shuttering of the only two abortion clinics in the Rio Grande Valley.

The lack of facilities is now requiring women seeking the procedure to travel about 150 miles to a Corpus Christi clinic.

State Solicitor General Jonathan Mitchell defended the state law, saying the state has a right to regulate medical practices as a way to promote women’s health.

“The law does not impose an undue burden,” he told the court.


Judge Edith Jones was openly skeptical of the abortion rights arguments, saying 150 miles to Corpus Christi did not seem to raise a high hurdle.

Jones said the speed limit along the highway was 75 mph, and it was a particularly uncongested roadway.

She also pointed out that while abortion rights groups argued more than one-third of the doctors would have to quit practicing because of the new law, some of those doctors have been able to obtain admitting privileges.

Clearly, any woman who doesn’t have access to a car or who doesn’t have an extra four-plus hours to spare on top of everything else doesn’t count. And hey, there’s at least one doctor and one clinic left – for now, anyway. What more do you complainers need? Really, the only question is whether Jones wrote her decision before oral arguments were made or not. She surely didn’t need to hear them to know what she was going to say.

Not that it would budge her set-in-stone mind, but it would do Edith Jones some good to read Lindsay Beyerstein’s report on what HB2 has meant to many women.

The Valley used to have two abortion providers — Whole Woman’s Health McAllen (WWHM) and Reproductive Services of Harlingen — but now it has none that currently offer abortions, because their doctors lack admitting privileges. (Emergency rooms are required to provide the same care to all patients, regardless of whether their doctors have admitting privileges there. While the doctors at WWHM are applying for privileges at local hospitals, Reproductive Services of Harlingen’s physician has already been turned down by all the hospitals in his area.) Even if Planned Parenthood wins its lawsuit, abortions will still have to be performed in ambulatory surgical centers by this time next year, which means that neither clinic can continue to operate in its current facility.

WWHM is the only abortion clinic in this border city of 134,000. Right now, according to WWHM’s Fatimah Gifford, if a woman in the Rio Grande Valley needs an abortion, she has to travel 240 miles north to San Antonio. Though Texas’ standard 24-hour waiting period is waived for women who live more than 100 miles from the nearest clinic, that allowance applies only to surgical abortions. To reach San Antonio via Highway 281, a woman has to pass through the Falfurrias border checkpoint, where the Texas Border Patrol will likely grill her about her immigration status, a daunting prospect for an undocumented woman seeking abortion care. Gifford says most of her undocumented patients won’t risk the trip.

A woman seeking a medication abortion must make three trips to San Antonio. A medication abortion, also known as a pill abortion, uses two drugs to induce a miscarriage in the first trimester. Under the new law, the first trip is for the ultrasound, consultation and the first pill, then she must return to the clinic 48 hours later for her second pill. Doctors who offer pill abortions in other states routinely give patients the second dose of pills to take home, but Texas law doesn’t allow it. Finally, she has to go back to the clinic 14 days later for a follow-up visit so that the same doctor can check to make sure that the drugs worked. Many abortion providers travel to clinics across the state or the country, which makes it difficult to ensure that the same doctor will be available for all three steps.

Planned Parenthood argued in court that this provision makes it so difficult for women to obtain abortions that it is equivalent to a ban, which has serious implications for the rights and health of women with existing conditions that make drug-induced abortion the only safe option.

Some women resort to self-induced medication abortions with the ulcer drug misoprostol, widely used in Latin America to terminate early pregnancies. Though it is available only by prescription in the United States, misoprostol can easily be purchased at pharmacies across the border in Mexico or at flea markets in the Valley. WWHM saw about one failed misoprostol self-induced abortion a day.

Andrea Ferrigno, WWHM’s vice president, said that if a woman arrives at the clinic after taking the pills for weeks and is still bleeding, doctors will typically complete the abortion if she’s still pregnant or clean out any residual tissue, as they would for a spontaneous miscarriage. Misoprostol is 85 percent effective, if administered properly, which suggests that many more women self-terminate and don’t need further medical attention.

I’ve noted the Misoprostol option before. You know what that’s going to mean: More calls for tightened border security. Because the Republicans who pushed HB2 care so much about women’s health. Irin Carmon, RH Reality Check, BOR, Texpatriate, and Texas Politics have more.

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One Response to Fifth Circuit pretends to hear HB2 appeal

  1. joshuaism says:

    “Clearly, any woman who doesn’t have access to a car or who doesn’t have an extra four-plus hours to spare on top of everything else doesn’t count.”

    Make that, 8-28 plus hours, when you factor in the 24 hour waiting period. You either have to make two trips or stay overnight.

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