Here’s what this means: If this ruling holds, before long abortion could become all but illegal in nearly every state controlled by Republicans.
We talk a lot about Washington gridlock, but this is actually an era of activist legislation at the state level. That’s true of states controlled by both Republicans and Democrats, but it’s especially true in a few areas, particularly abortion. Between 2011 and 2013 — after Republican success in the 2010 election — there were over 200 restrictions passed on abortion at the state level, an unprecedented surge in legislative activity. The Texas statute represents a relatively new kind of effort, to not just make getting an abortion as unpleasant and difficult a process as possible for women, but to shut down clinics entirely.
Both kinds of efforts have an impact. In a couple of dozen states, legislatures have imposed waiting periods to get an abortion, because women are obviously too irrational to make decisions on the spot. There are also 17 states that mandate “counseling” before an abortion, which often involves medical personnel being forced to read women misleading or outright false propaganda about bogus links between abortion and breast cancer or “fetal pain.” Then there are the states that force women to get ultrasounds whether they want them or not.
But the kind of law that Texas passed is aimed at shutting down clinics entirely. It does so by imposing a set of requirements on clinics that are designed to be nearly impossible to meet. The best known is the requirement that the physician performing abortions must have admitting privileges at a hospital within a certain radius of a given clinic. This would have precisely zero effect on whether a woman suffering complications from an abortion could get care at any hospital; a doctor without admitting privileges can still bring her patient to the hospital if it becomes necessary. It just means that one of the hospital’s doctors would have to officially admit the patient.
Because of an organized campaign of terrorism aimed at abortion doctors over the last couple of decades, which has included bombings and assassinations, many doctors come from out of state to provide abortions, and therefore can’t have admitting privileges; hospitals are also reluctant to bestow the admitting privileges on a doctor providing abortions for fear they too could become a target.
Like other restrictions, the admitting privileges requirement was concocted by Republican legislators precisely because they knew many abortion clinics would be unable to satisfy it and would therefore have to shut down. Texas’ law also requires that facilities performing abortions meet the building standards of ambulatory surgical clinics, which can mean millions of dollars in unnecessary upgrades.
This decision wasn’t surprising, given that the 5th Circuit is a particularly conservative court. But the reasoning of the judges was breathtaking all the same. The Planned Parenthood v. Casey decision written by Sandra Day O’Connor in 1992 established the “undue burden” standard, which says that a state can restrict abortion so long as the restrictions don’t impose an undue burden on women. This court decided that despite the fact that Texas’ law would mean that one out of every six women in the state would live more than 150 miles from the nearest abortion clinics after the law shut so many of them down, that wouldn’t constitute an undue burden. As Jeffrey Toobin wrote: “The members of the Fifth Circuit panel seem to believe that anything short of a nationwide ban on abortion does not amount to an undue burden on women’s rights. This is the argument that will soon be heading to the Supreme Court.”
There may be no more nakedly dishonest argument in all of American politics than the Republican claim that these kinds of restrictions are just meant to protect women’s health and safety, not to cut off their access to abortion services. It’s a lie, pure and simple, and every Republican who utters it know full well that he or she is lying. But if the Supreme Court were to uphold this decision, it would be a signal to every Republican-controlled legislature — one you can bet they’d heed — that there’s almost no restriction on abortion rights that is too extreme, too contemptuous of women and their rights, or too disingenuous to pass the Court’s muster. Right now, there are states where abortions are all but impossible to get; for instance, there’s only one clinic in all of North Dakota that performs them. But ten years from now, half the country could look like that.
So the next time you’re tempted to think that the really important political developments are all at the federal level and it’s barely worth knowing who your state representative is, think of cases like this one.