HB 2 does not impose an ‘undue burden’ on women

In November 2013, the Texas Tribune published a six-and-a-half minute video of self-employed Austin hipster Marni Evans describing her abortion story.

Evans and her fiance, John Lockhart, calmly explained how they arrived at the conclusion that “this was absolutely not the right time for us to have a child.”

And so, as is her right under the landmark U.S. Supreme Court decision Roe. v. Wade, Evans easily made an appointment to have her pregnancy terminated.

But only hours before her abortion was scheduled, the Fifth Circuit Court of Appeals granted a stay of a district court’s decision to strike down provisions of House Bill 2, the Texas law that, among other things, requires abortion providers to have hospital admitting privileges within 30 miles of the clinic and requires clinics to meet the standards of ambulatory surgical centers.

These requirements were added by lawmakers to improve safety. Other states drafted similar measures in the wake of the shocking conditions discovered in a Philadelphia clinic run for years by Kermit Gosnell, who is serving a life sentence for murdering three infants born alive during attempted abortions.

But because of the Fifth Circuit’s decision, the Austin clinic where Evans was seeking to obtain the abortion was not in compliance, and her appointment was canceled.

Indeed, many abortion providers in Texas are finding they do not meet the law’s requirements — which are no doubt strict, but far from impossible to achieve, particularly considering the lucrative nature of the abortion industry.

Evans found another local clinic to accommodate her needs, but she still told the Tribune that because of the difficulties she faced in rescheduling her procedure, her “rights were taken away.”

Given that Evans was, indeed, able to get her abortion, her comment is confusing. But it seems to encapsulate the mantra of many in the pro-choice movement: Not only should abortion be accessible, it should be convenient. And any limitations or challenges one faces in obtaining an irreversible medical procedure — that should by its very nature require careful consideration and intentional effort — constitute an undue burden.

If you’re like me, then you agree that obtaining an abortion should be hard, extremely hard, so much so that it forces the seeker to take all precautions necessary to avoid facing such a situation in the future. At present, given that nearly half of women seeking abortions have had one previously, abortion seems a bit too easy a solution.

But whether something is an “undue burden” as a constitutional matter is a decision for the courts.

And at least in the case of the Texas law, the Fifth Circuit has determined that it’s not something the majority of women face in the Lone Star State.

Monday, the court upheld (with one exception) HB2’s requirement of hospital admitting privileges, as well as the requirement that all abortion clinics in the state meet the same building, equipment and staffing standards that hospital-style surgical centers must meet.

It’s true that these standards will cause some clinics to close, increasing the distance that some women in certain parts of the state will have to travel to get the procedure.

Considering that in Texas, people will traverse the state for all manner of purposes, from shopping to football, 150 miles (the distance some women would have to travel), doesn’t seem very far at all, especially considering that many Texas women can and do easily access clinics in other states.

Of course, the Fifth Circuit’s reasoning may not be the final word on this matter. The plaintiffs are already appealing to the Supreme Court.

But as the Fifth Circuit points out, citing SCOTUS language in Planned Parenthood v. Casey: “The fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it.”

If that is any indication of how the Supreme Court might view this case, HB 2 may stand for good. We can only hope.

This story was originally published June 11, 2015 at 5:57 PM with the headline "HB 2 does not impose an ‘undue burden’ on women."