“Roe v. Wade is almost entirely dead,” pronounced
Chicken Little a blogger at ThinkProgress, as reported by LifeSiteNews. This came by way of mourning the June 9 decision by a three-judge panel of the Fifth Circuit Court of Appeals that a Texas law regulating abortion is partially valid.
Huh? Four abortion facilities and three doctors challenged the Texas law, and won some points in federal district court. Now, the Fifth Circuit panel has affirmed the district court’s ruling in part, modified it in part, vacated it in part, and reversed it in part. Roe, shredded battle flag that it is, is still being upheld. Read for yourself how carefully the Fifth Circuit avoided breaking new ground in abortion jurisprudence.
The most significant part of the decision – the part that prompted sky-is-falling rhetoric from abortion providers – is the upholding of a provision of the law that holds abortion facilities to the same standards as ambulatory surgical facilities (ASCs). You know, the standards that exist for patient safety. One Texas facility was exempted in the decision. The rest are now expected to meet the standards. The court noted that the plaintiffs tried to tar the entire law with a broad brush: “Plaintiffs conceded at oral argument that they made no effort to narrow their challenge to any particular standards of the ASC provision of H.B. 2 or its accompanying regulations. Instead, they ask us to invalidate the entire ASC requirement.” The Fifth Circuit has declined to do so. Perhaps future litigation on similar laws in other states will feature narrower challenges.
The challenged law, by the way, is H.B. 2, successor to S.B. 5 – the one Wendy Davis (remember her?) filibustered two years ago in her pink Mizunos,
A couple of footnotes to the case caught my attention. Footnote number 15 addressed the claim by plaintiffs (the abortion providers) that ASC standards would leave only eight operational abortion facilities in Texas. It seems that such an outcome is questionable.
The State …[argues] that currently licensed abortion facilities that do not comply with the ASC requirement might buy, build, or lease a licensed ASC. The parties stipulated that there were “433 licensed ambulatory surgical centers in Texas.” There was testimony at trial that Dr. Davis and Austin Woman’s Health Center purchased land in Austin with plans to open an ASC in the future and that Reproductive Services hoped to open an ASC in San Antonio. The fact that there are currently licensed ASCs in Texas where abortions are performed and that abortion providers have plans to open more attests that it is indeed possible for abortion providers to comply with the ASC requirement. …
And then there’s the opening line of footnote 17:
Plaintiffs offered expert testimony that the ASC requirement’s construction standards were “largely aimed at maintaining a sterile operating environment,” which is not necessary for surgical abortion because “it entails insertion of instruments into the uterus through the vagina, which is naturally colonized by bacteria.”…
Gotta love those experts.
The Roe-is-dead declarations sidestep something significant: success in the courts for patient-safety laws regarding surgical abortion is going to prompt abortion providers to rely more on chemical and telemed abortion. (See Chemical Abortion Scores in Court from 2013, including notes on New Hampshire.) This doesn’t mean the Texas law and others like it are bad ideas. It means the abortion industry will adapt its business model to whatever legislation is in place – always keeping some resources free for litigation, of course.
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