The last Monday in October an injunction blocking parts of Texas’ abortion law went into effect. But within three days the 5th Circuit Court of Appeals reversed the lower court’s ruling and lifted the injunction. On Monday, abortion-rights groups filed an emergency motion asking the Supreme Court to block Texas from enforcing part of the law, which is regarded as one of the most restrictive in the country.
The provision at issue is the requirement of admitting privileges for physicians providing abortions. According to the state’s new abortion law physicians must have admitting privileges at a hospital within a 30-mile radius of the clinic where the abortion is performed.
At first sight gaining admitting privileges seems mundane. But it is a steep logistical hurdle that many abortion providers would not be able to clear. More importantly, the medical community has not supported these requirements as medically necessary.
The injunction of the admitting privileges requirement was a short-lived win. The loss came 72 hours later and the effect was felt immediately. By the evening of when the decision was handed down nine abortion providers, a quarter of the state’s providers, had to cease services.
The three-day injunction did little in the way of preserving the tangible abortion rights of women in the state of Texas. However, it served to remind us of the core theoretical rights and actors at play. In his decision, U.S. District Judge Lee Yeakel stated that the implementation of the admitting privileges provision placed an undue burden on women and as a result was unconstitutional.
His reference to the undue burden women would face goes back to the Supreme Court’s decision in Roe v. Wade. Writing for the majority, Justice Blackmun’s opinion centers on how abortion while fundamentally about a woman’s right to privacy also entails a consideration for the mental and physical costs an unwanted pregnancy represent.
Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.
The original Roe v. Wade decision is clear in its focus on the woman. However, the language in the anti-choice movement over the last several decades has obscured the role of the woman.
By implementing the admitting privileges Judge Yeakel foresaw that up to a third of clinics would no longer be able to provide abortion services. This would mean that 22,000 women would lose access to abortion and have to overcome undue burdens to seek out other abortion providers that would be hundreds of miles away or perhaps even in another state.
Judge Yeakel brought the focus back onto the woman. And he did so genuinely, not in a paternalistic manner.
For months proponents of Texas’ abortion restriction bill contended that the legislation was about protecting women. That more stringent clinic and provider requirements were meant to ensure the safety of women.
The abortion bill was about eventually putting an end to abortions in the state. Last year at a Texas Right to Life meeting Governor Perry said as much, “To be clear, my goal, and the goal of many of those joining me here today is to make abortion, at any stage, a thing of the past.” The Governor and Pro-Life forces are concerned with the unborn child not the woman or even the child once she is born.
Rhetoric about concern for the woman is superficial. A discussion of the well-being of women in Texas is largely absent from those that govern, especially a consideration of the undue burdens they may face as a result of restricted abortion access.
Women were momentarily brought back into the spotlight. While the attention was brief it builds upon the attention that Texas State Senator Wendy Davis brought to abortion rights during her 12-hour filibuster to stop the abortion bill earlier this summer. Both Judge Yeakel and Senator Davis remind us of the intent of the law as established by Roe v. Wade. And more specifically they remind that women are at the center of the issue.
Victoria Defrancesco Soto
Friday, 15 November 2013