Late Tuesday night, the Supreme Court temporarily blocked Texas from enforcing portions of its sweeping antiabortion law, allowing more than a dozen clinics to remain open while the case heads back to the 5th Circuit Court of Appeals. The chain of events that preceded the high court's action in this specific Texas case is a little confusing, but here's the basic rundown: In the second of two legal challenges, Texas abortion providers argued that the ambulatory surgical center requirements of the law placed an undue burden on Texans' access to abortion care, and District Court Judge Lee Yeakel agreed that the provision was unconstitutional, striking it down. In response to that order, the state declared its intent to "seek immediate relief from the 5th Circuit," which is precisely what happened next. A panel of judges on that court then acted to block the enforcement of the district court order, shuttering all but eight clinics in the state and throwing abortion access -- already dangerously strained -- into virtual nonexistence. Providers behind the challenge then filed and were soon granted an emergency stay from the Supreme Court.
The high court's intervention this week allowed 13 clinics to reopen (though only 8 have reopened at this writing) and continue to see patients while the case goes back to the 5th Circuit. "The fight is far from over. This is an interim stage of the case," Esha Bhandari, a staff attorney at the Center for Reproductive Rights who has worked on both of the Texas legal challenges, told Salon. "The last brief in the case is due in December, [then] there will be a hearing before the 5th Circuit panel."
What happens at the 5th Circuit is anyone's guess, but there's obvious reason for concern. Conservative judges on that court have shown themselves to be hostile to abortion rights, with an apparent disregard for the real challenges Texans face in accessing basic medical care and exercising their constitutional rights. Earlier this year during a challenge to the law's admitting privileges requirement, Judge Edith Jones of the 5th Circuit dismissed the travel burden clinic closures placed on women in the Rio Grande Valley by encouraging them to drive fast to clinics in other parts of the state. After being informed that women were being forced to travel 300 miles round-trip to the nearest provider, Jones replied, “Do you know how long that takes in Texas at 75 miles an hour? This is a peculiarly flat and not congested highway.”
Bhandari was clear that predicting the 5th Circuit's next move was all but impossible, but expressed a degree of optimism that "if the 5th Circuit panel looks at the merits of this law and applies the correct legal standard, they'll see that it's not actually intended to benefit women's health."
If the 5th Circuit throws out the law, the clinics will remain open. Texas, like so many other states right now, will remain in an entrenched healthcare crisis, but clinics in badly underserved parts of the state will be allowed to do their work. But if the panel of judges decide to uphold the provision, the disaster of access will be badly compounded.
The Tuesday Supreme Court action was not based on the merits of the case, but the Texas challenge -- or several challenges to similar laws in places like Mississippi and Louisiana -- may soon wind up there again. "It does sometimes feel like one of these cases is going to end up before the Supreme Court because there are just so many of them," Bhandari explained. "Our hope is that if a case goes before the Supreme Court, they will see these laws for what they are. Because if the justices can step in and say, 'These laws are unconstitutional, they are just a backdoor way to restrict abortion,' that would allow for a nationwide standard that could be applied."
And that would mean that whether or not you can access medical care or have a reasonable expectation of having your constitutional rights protected wouldn't depend on where you lived. Under our current national patchwork of abortion restrictions, that's precisely the situation that far too many people have found themselves in.
The Supreme Court order reveals very little about how it would ultimately rule in such a case, and the predictions from legal experts and reproductive health advocates have been mixed. The order might suggest that the justices “saw the potentially irrevocable damage if the clinics were forced to close,” CUNY School of Law professor Caitlin E. Borgmann told the New York Times. Whereas Jessica Mason Pieklo, senior legal analyst for RH Reality Check, noted that, "just because Roberts and Kennedy didn’t vote to let the [ambulatory surgical center] provision take effect, that doesn’t mean they think the provision is unconstitutional."
The legal fight is ongoing, but so is the daily fight faced by providers who want to do their jobs and Texans who want to access basic medical care. There are currently just 16 abortion providers operating in the second most populous state in the country. In addition to the geographical barriers to access, other laws restricting abortion impose sometimes insurmountable time and cost burdens, requiring Texans to take time off work, travel long distances and come up with the money in order to obtain care. As a result, many Texans, particularly low-income women and women of color in places like the Rio Grande Valley, are likely to view legal abortion access as more theoretical concept than constitutional right.
The toll on providers has been heavy as well, according to Bhandari. "Providers and physicians have been both trying to maintain their practices and maintain the quality care that is their focus, but now they're also having to divert resources, time and attention to legal challenges," she said. "That involves testifying, providing evidence, gathering documents. A lot of time they have to be not just providers but full-time advocates. But they're still able to focus and be there for women, to keep fighting."
For providers, that fight is often day-to-day. Virginia Braun, the owner of the previously shuttered Dallas' Routh Street Women’s Clinic, reopened her doors this week. “We will take it one day at a time, but we’ve got appointments for tomorrow,” she told the Times.
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