When Republican policymakers in Texas approved sweeping new restrictions on women’s reproductive rights, critics of the new measures realized that their only hope was the judiciary, where they expected to prevail.
Abortion-rights proponents, however, have struggled in the courts, too. Irin Carmon reported late yesterday
The 5th Circuit Court of Appeals Thursday allowed Texas to begin enforcing tough new abortion restrictions that will effectively close all but eight abortion facilities in the nation’s second-largest state. Unless the Supreme Court steps in, the law is poised to have the most devastating impact on abortion access of any such restriction across the country.Under the law’s force, which will close 13 clinics, one out of six Texan women seeking an abortion will now live more than 150 miles from the nearest clinic. A lower court judge said that was unconstitutional, because it “would operate for a significant number of women in Texas just as drastically as a complete ban on abortion.” But the three-judge panel in New Orleans said the law would not impose an “undue burden,” staying the district court decision as the state appeals.
The ruling took effect immediately — as in, the affected clinics closed their doors literally last night. Women in Texas who had an appointment with medical professionals at one of these clinics this morning are out of luck. The 5th Circuit hopes they don’t mind driving 150 miles — each way — to the next closest office.
Note, since the Texas law took effect, half of the state’s clinics have already closed, but other offices remained open pending court review. The appeals court clears the way for the rest of the state measure to be implemented, which means 13 more clinics have had to close.
As of today, Texas women who want to terminate a pregnancy will be limited to eight clinics, zero in the Western half of the massive state.
To arrive at its conclusion, the majority on the 5th Circuit panel appears to have made up a legal standard.
From Carmon’s msnbc report:
George W. Bush appointee Judge Jennifer Elrod, writing for the Fifth Circuit, wrote that the district court judge had overreached because “in our circuit, we do not balance the wisdom or effectiveness of a law against the burdens the law imposes.” She conceded, “We do not doubt that women in poverty face greater difficulties.” But Elrod argued the court was required to find that a “large fraction” of women would be affected by the law, even as she noted that the number of affected women in rural Texas was 900,000. In a partial dissent, Obama appointee Stephen A. Higginson pointed out that the existing clinics would now have to “increase by at least fourfold the number of abortions they perform annually.”
The 5th Circuit is one of only a handful of federal appeals courts in which Republican-appointed judges outnumber Democratic-appointed judges. That could presumably change during the last two years of the Obama presidency, though with Republicans increasingly likely to take control of the U.S. Senate, the chances of this happening are poor.
Steve Benen is a producer for "The Rachel Maddow Show," the editor of MaddowBlog and an MS NOW political contributor. He's also the bestselling author of "Ministry of Truth: Democracy, Reality, and the Republicans' War on the Recent Past."