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Two Reasons Why That Texas Abortion Decision Is Nothing For The Pro-Choice Community To Celebrate

By Ian Millhiser  

"Two Reasons Why That Texas Abortion Decision Is Nothing For The Pro-Choice Community To Celebrate"

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Monday afternoon, in a decision that was initially reported as a major victory for reproductive choice, federal Judge Lee Yeakel struck down a portion of Texas’ newly enacted abortion restrictions. Yet, while Judge Yeakel’s decision places Texas women seeking abortions on much better ground than they would be in its absence, the reality is much more nuanced than early reports suggest.

The truth is that, while Yeakel’s opinion holds that Texas cannot take arbitrary actions that would effectively cut off abortion rights for many women, his opinion still permits Texas to force women to endure unnecessary pain & hardship before they can terminate their pregnancy. Additionally, his opinion will be reviewed by one of the most conservative courts in the country. So Yeakel’s decision is only a partial victory for Texas women and it is likely to encounter a very hostile bench on appeal.

The first part of Yeakel’s opinion halts a provision of Texas law requiring physicians performing abortions to obtain certain hospital admitting privileges. As Yeakel explains, “there is no rational relationship between improved patient outcomes and hospital admitting privileges.” Moreover, allowing such a provision to stand would effectively prevent any doctor from performing abortions in many clinics. Many current abortion providers “do not currently have admitting privileges and cannot gain admitting privileges for reasons including lack of a board certification specialty, retirement, impact on their private practice, and residing too geographically remote from the hospitals that are 30 miles from the Whole Women’s Health Services facilities.” Meanwhile doctors who already have such privileges are reluctant or unable to practice at abortion clinics for a variety of financial or personal reasons. So, by striking down this one part of the Texas law, Judge Yeakel prevents an unnecessary regulation from shutting down many of Texas’ clinics. That’s a victory for abortion rights.

An equally important section of Yeakel’s opinion, however, offers less welcome news for women seeking abortions. In brief, the Food and Drug Administration approved a particular method of terminating a pregnancy via medication in 2000. Since then, doctors developed an alternative method that is endorsed by the American College of Obstetricians and Gynecologists (ACOG), but has not yet been approved by the FDA. This alternative method requires lower doses than the FDA-approved method, and it also enables the woman to make fewer visits to the doctor’s office. Notably, because one of the drugs used in medical abortions “triggers almost immediate bleeding and cramping,” the alternative method allows women to administer the drugs at home — rather than have to undergo the uncomfort caused by the drugs in an unfamiliar clinical setting.

Texas’ law permits doctors to prescribe the reduced doses used by the alternative method, but Yeakel reads the Texas law to “not allow the physician to follow the administration or route portions of the off-label protocol.” Among other things, this forces women into a cold clinical setting while they are enduring the effects of the abortion drugs.

Judge Yeakel, however, finds nothing constitutionally wrong with Texas forcing women to endure such unnecessary hardship in order to obtain an abortion. Quoting the Supreme Court’s decision in Planned Parenthood v. Casey, Yeakel holds that “the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate” the Texas law. When “reasonable alternative procedure[s]” are available, a state’s decision to ban one particular procedure is not unconstitutional, even if that is the least painful, least time-consuming or least demeaning procedure available to the woman. “Individuals do not have a constitutional right to a preferred medical option, so long as a safe, medically accepted, and actual alternative exists.”

So the upshot of Yeakel’s opinion is that Texas cannot ban abortion. Nor can they create entire swaths of their state where abortions are nearly impossible to obtain. But they can effectively punish women by making them endure unnecessary pain, hardship or invasiveness before they can exercise their right to choose. Should Yeakel’s decision stand, it is practically an invitation for lawmakers to impose needless pain on women seeking abortions.

And, of course, there is no guarantee that it will stand. It first has to survive contact with a conservative court with a significant record of upholding restrictions on abortion.

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