A federal appeals court decision handed down on Tuesday would drain Roe v. Wade of nearly all of its vibrancy if its reasoning is embraced by the Supreme Court. The decision, by three George W. Bush-appointed judges on the United States Court of Appeals for the Fifth Circuit, holds that courts should defer to the legislature’s judgment in cases seeking to invalidate an abortion law when “medical uncertainty” exists about whether the law advances patient health. As a practical matter, this will enable states to enact broad restrictions on abortion so long as the state can offer a fabricated justification claiming that the restriction is actually a health law.
On the surface, the opinion does appear to offer a thin silver lining to women who seek abortions, however. Though it allows a Texas law that has already shut down many of the state’s abortion clinics to take effect, it does allow a single closed clinic to reopen — albeit with only one doctor who is now allowed to perform abortions in that clinic. The Whole Woman’s Health clinic in McAllen, Texas is the sole clinic in its geographic region. The closest open clinic is approximately 235 miles away. The Fifth Circuit determined that this fact, combined several other factors such as evidence showing that many women engaged in “self-attempted abortion” once the Whole Woman’s Health clinic shut down, was enough to allow the clinic to remain open despite Texas’s law.
In the short term, this is a victory for reproductive choice. In the longer term, however, this decision could have the ironic effect of reducing access to abortion in the area surrounding McAllen. Though the Fifth Circuit’s decision does allow this one clinic to remain open, this aspect of the court’s decision only lasts “until such time as another licensed abortion facility becomes available to provide abortions at a location nearer to the Rio Grande Valley than San Antonio.”
In effect, the decision creates a geographic area where either the McAllen clinic may operate, or any other clinic or group of clinics are allowed to operate. That’s likely to discourage other clinics from opening in that area because, should a single new clinic open, it will force the McAllen clinic to close.
Of course, it’s possible that multiple clinics might decide to open in the Rio Grande Valley, but that would require an extraordinary investment by abortion providers. One way that the Texas law works to shut down clinics is by imposing expensive new architectural and other requirements that all abortion clinics must comply with in order to remain open. By one estimate cited in the court’s opinion, building a new clinic from scratch costs $3.4 million, and that does not include the price of land. Thus, thanks to the Fifth Circuit’s decision, an abortion provider that invested this $3.4 million plus the cost of land into building a new clinic is likely to only maintain the status quo in the Rio Grande Valley. To increase the number of clinics, that provider would have to invest twice as much.