“Fractions Of Women In Texas”: When Does Nine Hundred Thousand Seem Like An Insignificant Number Of Women?
How do you count women in Texas, and when do the numbers get big? There is a good deal of bad math in a decision made last week, by the Fifth Circuit Court of Appeals, that had the effect of closing all but eight abortion clinics in the state; until recently, there were about forty. Five million four hundred thousand Texans are women of childbearing age. Almost one and a half million of them will live more than a hundred miles from any clinic; nine hundred thousand will live more than a hundred and fifty miles away, seven hundred and fifty thousand more than two hundred and fifty miles. For a good many, there will be more than five hundred miles to go, unless they want to cross the border and take their chances in Mexico. For a two-to-one majority on the Fifth Circuit panel, that just wasn’t enough women for them to worry about.
The Texas clinics will close because of a law, passed by the state legislature last year, that placed new regulations on clinics that provide abortions. The Supreme Court has found that women cannot be cheated of their right to end a pregnancy before viability by way of laws that place an “undue burden” on them, as standard laid out in Planned Parenthood v. Casey, in 1992. But, as Jeffrey Toobin recently wrote, courts in recent years have become increasingly merciless in what they consider undue for a woman at what is often a moment of profound crisis, to the point where almost no burden seems too heavy.
Several aspects of the new law, like one requiring doctors to have admitting privileges at hospitals within a certain distance, survived challenges. But, in August, the District Court Judge Lee Yeakel struck down a rule that clinics have to be outfitted and operated as ambulatory surgical centers, even if they only provided medication-induced abortions early in pregnancies. Yeakel’s decision came after a trial at the District Court level that included testimony that requirement was not practical for most clinics, would leave no clinics open south or west of San Antonio, and was not based on any sound medical rationale. The state wanted the provisions to go into effect regardless, pending its appeal; Yeakel said no. The appeals court has lifted that stay, saying that it thought the law would ultimately survive the challenge. (It did leave room for a partial reprieve for a clinic in El Paso, though not for one in McAllen.) And so, on Friday, thirteen clinics in Texas began turning patients away.
The Fifth Circuit judges picked up on another phrase in Casey: “a large fraction.” A way to tell if a burden is undue is if it presents obstacles for a large fraction of the women for whom it is relevant. The fraction the Fifth Circuit calculated was one-sixth: nine hundred thousand women who would have to travel more than a hundred and fifty miles out of five million four hundred thousand who could possibly get pregnant—“not a large enough fraction to impress the appeals court,” as Ruth Marcus put it, no matter the absolute number. There are, if one is counting, at least three reasons this logic is wrong.
First, a sixth can be pretty large, depending on what the numerator (one, in this case) and the denominator (the six) represent. (One-sixth of New York City’s population lives in the Bronx.) That is why one uses a word like large rather than something more definite, like majority. When it comes to a decision that can shape a woman’s life, this Texas sixth is a large fraction—and that alone should have been enough for the judges.
Second, it’s not clear at all that the majority chose the right numerator or denominator—that the fraction really is a sixth. First, the numerator: Is it only the women who have to drive these distances who are affected when a state that, until recently, had sixty-to-seventy-two thousand abortions each year, suddenly has only eight clinics—all in a few cities? Or does it also mean that the women in the next clinic over will soon find it hard or impossible to get an appointment? Speed matters a great deal for abortion; Texas’s law also included a twenty-week limit. (In another sign of fractional bad faith, the majority suggested that a woman who had been a hundred and fifty miles from a clinic and was now two hundred and fifty miles away might only be facing an “incremental increase of 100 miles.”)
One can also reconsider the denominator, the bottom number. In Casey, the Supreme Court upheld some restrictions in Pennsylvania but overturned a requirement that married women notify their husbands. The state of Pennsylvania had argued that only twenty per cent of women seeking abortions were married and that ninety-five per cent would tell their husbands anyway, and so the fraction affected was tiny—maybe one per cent, and therefore too few to count. The Court rejected that math, saying,
The analysis does not end with the one percent of women upon whom the statute operates; it begins there. . . . The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.
The denominator that the Court chose in that case was “married women seeking abortions who do not wish to notify their husbands of their intentions and who do not qualify for one of the statutory exceptions to the notice requirement.” The fraction affected was suddenly very large.
The Texas decision briefly looks at the argument for a different denominator—women whose options will get worse because of the law—but then rejects it, bizarrely enough, because the resulting fraction is too large: it “would make the large fraction test a tautology, always resulting in a large fraction.” But that is only true if the burden on women for whom the law is relevant is, indeed, undue. One can imagine a law that presented X women with obstacles that Y of them could, nonetheless, easily navigate. What the judges see as a “tautology” is a sign that something is seriously wrong with the Texas law.
Third, as the dissenting judge in the Texas case noted, Casey doesn’t just talk about fractions: it talks about a “significant number” of women who, under the spousal-notification requirement, would not have meaningful access to abortion. After reviewing statistics on domestic violence, the Casey decision notes,
We must not blind ourselves to the fact that the significant number of women who fear for their safety and the safety of their children are likely to be deterred from procuring an abortion as surely as if the Commonwealth had outlawed abortion in all cases.
When does nine hundred thousand seem like an insignificant number of women?
There is another factor, involving other numbers: poverty. The Fifth Circuit judges acknowledged that women without much money would be more affected by the law than others: they might not have a car, or a way to take a day off from work to drive six hours. But that didn’t, somehow, change the judges’ calculation.
By: Amy Davidson, The New Yorker, October 5, 2014
“Is This The Return Of Back Alley Abortions?”: The “Republican War On Women” Is A Fact, One That Voters Are Certainly Aware Of
Sometimes, women have sex. Sometimes, that sex is unprotected. Sometimes, women get pregnant. And sometimes, they chose to terminate their pregnancies by having abortions. In fact, one in three American women will have an abortion by the age of 45. These are all basic and undeniable facts of life, facts just like evolution and climate change and the economic benefits of raising the minimum wage that both universal truth and voter opinion plainly endorse. And then there’s the Republican Party, determined to face these facts in the same way it faces its inevitable substantive and demographic irrelevance — in other words, not at all.
According to a recent poll conducted by NARAL Pro-Choice America, almost 7 in 10 Americans “believe having an abortion is morally acceptable and should be legal” or are “personally against abortion” but “don’t believe government should prevent a woman from making that decision for herself.” Included in that number are fully 53 percent of Republicans who say they don’t support government limits on abortion.
The Republican Party has a major — and growing — problem not only wooing women voters but also male voters who support women’s reproductive freedom, let alone economic equality. And yet confronted with facts, including that Republicans in Texas are forcing the closure of the majority of the state’s abortion clinics, what does Reince Priebus, the head of the Republican Party, do? Distract from the facts.
On Meet The Press this past Sunday, Chuck Todd asked Priebus about last week’s ruling by the Fifth Circuit Court to allow Texas’ restrictive anti-abortion law to take immediate effect. Here’s their exchange via RH Reality Check’s Jodi Jacobson, who has characterized Priebus’ response as a downright lie:
TODD: A court upheld a new law in Texas. One of the things about the Republican Party is you don’t like a lot of regulation on businesses, except if the business is [an] abortion clinic. Eighty percent of these abortion clinics in Texas are going to be basically out of business because of this new law. Too much regulation, is that fair? Why regulate on the abortion issue now until maybe the law is—and maybe wait until you win a fight in the Supreme Court where you outlaw abortion altogether. Why restrict a business now in the state of Texas?
REINCE PRIEBUS: Well, you obviously have to talk to someone in Texas. But the fact of the matter is that we believe that any woman that’s faced with an unplanned pregnancy deserves compassion, respect, counseling, whatever it is that we can offer to be—
CHUCK TODD: But 80 percent of those clinics are gone. So that they have to drive 200 or 300 miles for that compassion?
REINCE PRIEBUS: No, look, listen, Chuck. The issue for us is only one thing. And that’s whether you ought to use taxpayer money to fund abortion. That’s the one issue that I think separates this conversation that we’re having.
Wait a second! The Texas law has absolutely nothing to do with taxpayer dollars — after all, Texas banned public support for reproductive health a long time ago. No, the Texas law merely places extremely onerous and unnecessary requirements on abortion providers for the sole purpose of forcing those providers to stop performing abortions. Which, by the way, is working — as a result of the Fifth Circuit ruling, seven or eight additional clinics in Texas will close, forcing women in many parts of the state to drive 300 miles or more to exercise their constitutional right to an abortion. The Texas policy, after all, is the manifestation of GOP-led attacks on abortion across the country, which have gone to such an extreme that 87 percent of counties in America do not have abortion providers and medical training on abortion care has been so undermined that, as The Daily Beast reported, a new online course is trying to fill the gap.
Maybe Priebus was confused. Republicans also oppose government funding for contraception — or even, in the case of Obamacare, government requiring private insurers to cover contraception — despite the obvious fact that affordable access to contraception lowers the rate of unintended pregnancies and thus the need for abortions. Then again, I give Priebus more credit than that — and assume that his words weren’t accidentally misspoken but deliberately misleading.
Again and again, as I have written, it seems to boil down to Republicans being offended that women — especially poor women — even want to have sex. How dare they! Soon they’ll be wanting equal pay. “You could argue that money is more important for men,” Republican congressional candidate Glenn Grothman of Wisconsin once said, explaining his opposition to equal pay laws. Birth control is for women who “cannot control their libido,” said former Arkansas Governor and Republican presidential candidate Mike Huckabee.
These attitudes, along with backwards policy stances, paint a picture of a GOP not only out of touch with women’s reproductive and economic freedom but downright opposed to it. Is it any wonder that women, especially young liberated women, are fleeing from a party that is so profoundly and anachronistically condescending to more than half of the population?
Rank-and-file conservatives by and large do not share these extreme anti-equality, anti-abortion, anti-women attitudes. But such views are becoming dangerously prevalent among Republican leaders and candidates — and being translated into policy at a record pace, with results so frightening that Republican leaders realize they can’t even be honest with voters about the effects. In other words, the “Republican War on Women” isn’t a politically convenient construction of the Democrats, it’s a fact — one that voters are certainly aware of.
By: Sally Kohn, The Daily Beast, October 7, 2014
“A Crisis Turned Catastrophe In Texas”: Women Have Been Relegated To Second Class Citizenship
Last night, a decision by the 5th Circuit Court of Appeals left Texas with no more than eight remaining abortion clinics. You would think by now the willingness of state lawmakers to deliberately create a health crisis among their constituents – and the willingness of the courts to allow it – would be no surprise. But I continue to be shocked.
“All Texas women have been relegated today to a second class of citizens whose constitutional rights are lesser than those in states less hostile to reproductive autonomy, and women facing difficult economic circumstances will be particularly hard hit by this devastating blow,” said the Center for Reproductive Rights’ Nancy Northrup.
House Bill 2 could be the grand finale in Texas’ efforts to completely dismantle its reproductive health infrastructure on which women – particularly poor women, women of color, young women, and immigrant women – have relied for decades. Pretty soon there won’t be any clinics left to close. Just three years ago, conservative lawmakers gutted the state’s family planning program, which closed approximately 80 family planning providers across the state, caused 55 more to reduce hours, and left hundreds of thousands of women without access to reproductive healthcare. Even before those programs were eviscerated, they provided care and services to only 20 percent of women in need.
And as if that wasn’t enough, lawmakers introduced HB2, a bill that imposes onerous restrictions on abortion providers and demands that all clinics meet costly – upwards of $1 million – building requirements to qualify them as ambulatory surgical centers (ASCs). Lawmakers claimed these regulations were critical to protecting the lives and health of Texas women, but that’s simply not the case. Currently more than three-quarters of the state’s ASCs have waivers that allow them to circumvent certain requirements: unsurprisingly, abortion providers are prohibited from obtaining those same waivers. HB2 quickly closed the majority of the state’s 41 clinics that offered abortion services – clinics that also provided birth control, pap smears, breast exams, pregnancy tests, and a host of other services. There are few, if any, providers to take their place.
These new restrictions add an unbearable weight to the burdens that too many of Texas’ women already shoulder. Texas has one of the nation’s highest unintended and teen birth rates. The nation’s lowest percentage of pregnant women receiving prenatal care in their first trimester. The highest percentage of uninsured children in the nation. High rates of poverty and unemployment and a woefully inadequate social safety net. And lawmakers who refuse to expand Medicaid, leaving nearly 700,000 women who would qualify for coverage without it.
Just a few weeks ago, Judge Lee Yeakel of the United States District Court in Austin gave health advocates an iota of hope when he ruled HB2 to be an undue burden on women’s constitutionally guaranteed right to an abortion. Yeakel’s decision wasn’t just significant because it delivered a win for humanity in Texas after countless losses, or because the concept of an undue burden was finally being used to protect – not erode – women’s right to chose, but because it was based on facts. Facts! Judge Yeakel relied on incontrovertible data to call BS on a law that purports to protect women, but has only ever been about abolishing abortion access.
He argued that for many women, HB2 might as well be an outright ban on abortion. He asked how the eight (at most) providers left could ever each serve between 7,500 and 10,000 patients. How would they cope with the more than 1,200 women per month who would be vying for limited appointments? “That the State suggests that these seven or eight providers could meet the demand of the entire state stretches credulity,” he said.
Yeakel acknowledged the complex intersections of women’s health and economic (in)security:
The record conclusively establishes that increased travel distances combine with practical concerns unique to every woman. These practical concerns include lack of availability of child care, unavailability of appointments at abortion facilities, unavailability of time off from work, immigration status and inability to pass border checkpoints, poverty level, the time and expense involved in traveling long distances, and other inarticulable psychological obstacles. These factors combine with increased travel distances to establish a de facto barrier to obtaining an abortion for a large number of Texas women of reproductive age who might choose seek a legal abortion.
Yeakel warned that the stated goal of improving women’s health would not come to pass. And it won’t. The increased delays in seeking early abortion care, risks associated with longer travel, the potential increases in self-induced abortions “almost certainly cancel out any potential health benefit associated with the requirement,” he said.
But Yeakel’s arguments were not compelling enough for the 5th Circuit, which finds it perfectly acceptable that more than one million women now need to travel more than 300 miles (and many women even further) to access health care that is constitutionally guaranteed to them.
This decision will have a ripple effect. Other anti-choice lawmakers across the country are following Texas’ lead, imposing similar restrictions on clinics and physicians who provide abortions. The vindication of Texas lawmakers who have used their legislative power to wreak havoc on the lives of women and families will only continue to embolden other states seeking the same goals.
Conservatives like to argue that they are not waging a war on women. Today there are a whole lot of us who find it impossible to argue otherwise.
By: Andrea Flynn, Fellow at the Roosevelt Institute, The National Memo, October 3, 2014
“Free Enterprise Groups”: How The Koch Brothers Helped Bring About The Law That Shut Texas Abortion Clinics
In Texas politics, abortion is front and center once again—and so is the role of so-called “free enterprise” groups in the quest for government control of women’s lives.
Yesterday, there were 21 abortion clinics available to the women of Texas, the second-largest state in the nation. Today, thanks to a decision handed down from a three-judge panel on the federal 5th Circuit Court of Appeals, there are eight. But the story really begins with the U.S. Supreme Court’s 2010 decision in Citizens United, and the flow of money to anti-choice organizations from groups that profess to care only for the deregulation of industry and markets.
The closing of some 13 abortion clinics today in Texas hinges on a provision of the highly restrictive, anti-abortion bill passed in the state legislature in special session in 2013—the part of the law that requires clinics to comply with the building code standards for hospital-quality ambulatory surgical clinics, despite the assertion of nearly every credible medical association that such requirements are medically unnecessary.
In fact, the most significant effect of the facility requirements is to prevent women from obtaining safe abortions, since the clinics cannot not afford the alterations to their facilities demanded by the law. And given the state’s other restrictions on abortion—a mandatory and medically unnecessary sonogram, a 24-hour waiting period and a ban on abortions taking place 20 weeks post-fertilization—you’d be forgiven for thinking that most significant effect to be by design.
That aspect of the law, as well as others, were challenged by the Center for Reproductive Rights and other pro-choice groups. In August, the groups won a reprieve from the requirement that clinics meet hospital building-code standards, as well as from another provision that requires physicians who perform abortions to have admitting privileges at a hospital within a 30-mile radius of the practice or clinic where they conduct the procedure. At that time, Judge Lee Yeakel of United States District Court in Austin ruled in the clinics’ favor.
Then Texas Attorney General Greg Abbott, the Republican candidate for governor, appealed Yeakel’s ruling, yielding Wednesday’s ruling from the three-judge panel in a decision that was contemptuous of Yeakel’s decision, declaring him to have exceeded his judicial authority.
But even more astonishing in the 5th Circuit’s opinion is its assertion that the shuttering of most of the state’s abortion clinics will not place an undue burden—the standard set in the Supreme Court’s 1992 decision in Planned Parenthood v. Casey—on women seeking abortions. According to the New York Times, some 5.4 million women of childbearing age live in the Lone Star State, which covers more than 268,000 square miles.
The ruling puts abortion politics front and center, once again, in the Texas gubernatorial race, just a month before Election Day. In truth, it’s the issue that’s provided the subtext of that race from the get-go, as the Democratic candidate, State Senator Wendy Davis, rose to national prominence for her fortitude in launching, on June 25, 2013, an 11-hour filibuster that temporarily forestalled passage of the law, as pro-choice demonstrators poured into the state capitol building. In his role as the state’s top lawyer, Abbott is charged with enforcing that law, and has done so with gusto
But, as I reported for RH Reality Check in November 2013, the rash of anti-abortion laws that flooded the agendas of state legislatures across the nation that summer were hardly the result of spontaneous uprisings; they were fueled with the dollars of such “free enterprise” groups as Freedom Partners, Americans for Prosperity, the Center to Protect Patient Rights and 60 Plus—all part of the fundraising network organized by Charles and David Koch, the billionaire principals of Koch Industries, the second-largest privately held corporation in the United States.
The brothers may care little about killing the right to choose, but that doesn’t mean they’ll hesitate to throw women under the bus if it helps them in their anti-regulatory, shrink-the-government crusade. Religious-right leaders, in recent years, theologized the free-market cause, providing the Kochs and their ilk with foot-soldiers willing to execute it, if only they could find their way to political power.
In the wake of the 2010 Supreme Court decision in Citizens United, which gave license to groups like those mentioned above to spend unlimited sums in elections without disclosing their donors, millions of free-enterprise dollars flowed to anti-choice groups and politicians. (In Texas, for example, Rep. Jodie Laubenberg, the sponsor of the House version of the draconian 2013 abortion law, was also president of the state chapter of the American Legislative Exchange Council (ALEC), the influential right-leaning group, supported by the Kochs, that crafts legislation designed to cut regulations on corporations.) The Koch network money led to an unprecedented number of anti-choice politicians elected to state legislatures in 2010 and 2012.
With a month to go before voters hit the polls, Wendy Davis is gaining on Greg Abbott, but a recent poll still has her 9 points behind the Republican. He’s likely to enjoy a flood of outside spending on his behalf by the Koch-network groups.
Then there’s money in their respective campaign coffers. “In July, Abbott had $35.6 million on hand,” reports Wayne Slater of the Dallas Morning News, “while Davis had $8.8 million.”
In Texas, as in much of the nation, it’s hard for a woman to catch a break.
By: Adele M. Stan, The American Prospect, October 3, 2014
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