“It’s No Big Deal”: Fifth Circuit Seems To Find No “Burden” As “Undue”
A three-judge panel of the conservative Fifth Circuit Court of Appeals has upheld Texas’ new anti-abortion law, a classic of the genre insofar as it uses late-term abortion restrictions to mask a more general effort to shut down abortion clinics via medically dubious “health” requirements.
You can expect conservatives to make hay of the fact that all three judges on the panel are women (one of them the famous conservative judicial activist Edith Jones, who wrote the opinion). But they certainly had no sympathy for the women affected by their action, arguing that it’s no big deal if they have to travel across or beyond Texas to obtain abortion services. MSNBC’s Irin Carmon assesses the damage:
The Supreme Court has held that laws restricting access to abortion can’t put an “undue burden” or have the purpose of putting a “substantial obstacle” in the path of a woman seeking an abortion. But in a decision written by Judge Edith Jones and signed onto by Judges Jennifer Elrod and Catharina Haynes, the Fifth Circuit argued that Texas’s law wasn’t harsh enough to meet that standard. Despite the fact that the admitting privileges requirement has been rejected as medically unnecessary by the American Medical Association and the American College of Obstetricians and Gynecologists, the Fifth Circuit opinion accepted the state of Texas’s reasoning at face value – that it was intended to protect women’s health, not end access to abortion.
The Fifth Circuit wasn’t impressed at how much harder it has become for Texas women to have abortions, both because clinics whose providers have been rejected for privileges have closed outright and because clinics with doctors that have been able to get privileges are operating at reduced capacity. According to a map by RH Reality Check’s Andrea Grimes, “As of March 6, there are 25 open abortion clinics, six of which are ambulatory surgical centers, in Texas.” There were 36 abortion clinics in Texas at the time the law was passed, meaning that the dire prediction that a third of the clinics would close has come true. When requirements that abortions be provided in ambulatory surgical clinics go into effect in September, that will leave only six clinics, plus another one Planned Parenthood is building in San Antonio.
Since the 7th Circuit reached the opposite conclusion in striking down a similar law in Wisconsin, it’s now almost certain the Supreme Court will have to weigh in, giving Justice Anthony Kennedy a fresh chance to recite his paternalistic approach to women’s health, and the Court’s conservative bloc the best chance they’ve had in years to weaken the “undue burden” standard for abortion restrictions.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, March 28, 2014
“The Last Rural Abortion Clinics In Texas Just Shut Down”: Back-Alley Procedures Are About To Become A Lot More Common
Since November, the last abortion clinics in East Texas and the Rio Grande Valley, some of the poorest and most remote parts of the state, have been hanging on by their fingernails. The two clinics, both outposts of a network of abortion providers called Whole Woman’s Health, stayed open with slimmed-down staffs while their owner, Amy Hagstrom Miller, struggled to comply with the first chunk of HB2—the voluminous anti-choice law passed by the Texas legislature last summer—which requires abortion doctors to obtain admitting privileges at a local hospital. Today, after weeks of failed negotiations with nearby hospitals, Hagstrom Miller announced that both clinics are closing their doors.
The clinics in Beaumont, about an hour east of Houston, and McAllen, just north of the Mexico border in the Rio Grande Valley, were the last rural abortion providers left in Texas. Between July, when HB2 passed, and November, when the admitting privileges requirement went into effect, nearly half of the state’s 44 abortion clinics folded, unable to comply with the new rules. The health center in McAllen stopped offering abortions and pared down its staff, providing ultrasounds and counseling to the women who continued to walk in the door and helping them coordinate travel to the nearest clinic, two hours north in Corpus Christi. The Beaumont clinic survived this initial purge because one of its physicians had admitting privileges, but he’s in his seventies and wants to retire. His colleagues couldn’t get privileges in his stead, leaving the clinic in a precarious position.
“I had to come to terms with the fact that those clinics had no future,” Hagstrom Miller says. She might have kept looking for a way to keep them open, if she wasn’t facing a much bigger threat. In September, the rest of HB2 will go into effect, requiring all abortion providers to conform to the same standards as ambulatory surgical centers (ASCs), outpatient care units that offer more complicated procedures, usually involving high levels of anesthesia. Only one of Hagstrom Miller’s remaining three clinics, the Whole Woman’s Health in Fort Worth, qualifies as an ASC. Updating the other two clinics to comply with ASC regulations—which include wider hallways and specialized heating and cooling systems—could cost $6 million.
The Corpus Christi clinic (which isn’t one of Hagstrom Miller’s) also has until September to renovate. If that clinic closes, Rio Grande residents will have to embark on a five-hour trek to San Antonio. Women in Beaumont won’t have as far to drive, but they will have to make multiple trips. Under Texas law, women seeking an abortion must obtain a sonogram from the doctor who will be performing the procedure at least 24 hours ahead of time. If you live more than 100 miles from the clinic, you’re exempt from the law. Unfortunately for Beaumont women, their town is a mere 90 miles from the nearest abortion provider in Houston.
For many women, a long drive, an overnight stay, and a few days off work are a substantial burden, but not impossible. For the residents of the Rio Grande Valley, though, these new hurdles could make abortion as difficult to obtain as if it were illegal. McAllen is one of the poorest cities in the country, second only to Brownsville, another town nearby. Last fall, Sarah Posner documented some of the barriers that keep women in the Rio Grande from accessing basic reproductive healthcare like birth control. Unpaved roads, erratic electricity, and poor sanitation are common in the surrounding communities. Few of the Rio Grande’s residents have jobs with sick leave. By Hagstrom Miller’s estimate, around one-third of her patients are undocumented immigrants who can’t drive beyond the border checkpoints north of McAllen without risking deportation.
Rather than waiting for months to scrape together the money for the procedure and the trip—a Sisyphean task in itself, since the price for abortion skyrockets from as little as $300 in the first trimester to several thousand dollars by the end of the second—more women may take matters into their own hands. The Rio Grande Valley already has one of the highest rates of self-induced abortion in the country. A 2012 survey found that 12 percent of women in clinics near the Mexico border said they had attempted to end their pregnancy on their own before seeking professional help. “They’re getting drugs from Mexico, drinking teas, eating herbs, falling down the stairs on purpose or convincing their boyfriends to beat them up,” Hagstrom Miller says. “Any of those methods could be fatal.”
The problem is compounded by the Texas legislature’s decision, in 2011, to slash funding for family planning services. Dan Grossman, the vice president for research at Ibis Reproductive Health, a pro-choice think tank, has been investigating the effects of these cuts as co-principal investigator of the Texas Policy Evaluation Project at the University of Texas-Austin. In a 2012 survey of women seeking abortions, nearly half of the respondents said they hadn’t been able to obtain their preferred form of birth control in the past three months. “The cuts in family planning are leading to a rise in unintended pregnancy and an increased demand for abortion,” Grossman says. “More clinic closures means that women will have to wait longer to get the procedure, which means a higher risk of complications.”
In 2013, 38 percent of people living in the Rio Grande Valley were uninsured. When state-funded family planning clinics in the region folded, poor women lost their only source of affordable birth control. Now, some may be getting access to contraception once again, thanks to the rollout of Obamacare. But Texas’s refusal to participate in Medicaid expansion means that many Rio Grande residents will fall into the “coverage gap”—earning too much to be covered under Medicaid but too little to qualify for insurance tax credits—and won’t be able to get the no-cost birth control promised by the Affordable Care Act. Others are undocumented and unable to buy insurance on the exchanges.
Long wait times for appointments will undoubtedly become the norm. By next fall, when the ASC requirement kicks in, six clinics in major urban centers—Houston, Austin, San Antonio, Dallas, and Fort Worth—could be responsible for performing more than 70,000 abortions each year. Hagstrom Miller and others are fundraising to help poor women pay for transportation to these cities, but for many, a trip to Mexico to buy illegal abortion drugs might seem like a better bet.
By: Amelia Thompson-Deveaux, The American Prospect, March 6, 2014
“Why Does The National Media Get Texas So Wrong?”: Ultra-Conservative Candidates Aren’t Fading Away
Tuesday, as Texas primary voters headed to the polls, Politico published an article titled, “The Texas tea party’s best days may be behind it.” Below the headline were photographs of Governor Rick Perry, the state’s junior U.S. Senator Ted Cruz, and Congressman Steve Stockman, who had decided to wage a last-minute, barely visible campaign again Texas’s senior U.S. senator, John Cornyn. The article focused on the Cornyn-Stockman race, and it mentioned a congressional primary in which incumbent Pete Sessions faced a Tea Party challenge from Katrina Pierson.
To anyone familiar with Texas politics, the article was baffling. It made no mention of the state’s most-watched (and most important) GOP primary, the race for the lieutenant governor nomination, and it made only a passing reference to the attorney general race, even though both contests featured bloody fights between so-called “establishment” and Tea Party candidates. The state’s hardest-right election force, the Empower Texans political action committee, also didn’t figure anywhere in the story.
Even after results poured in showing that for the most part Texas remains a dangerous place to skate too near the center, The New York Times headlined its recap with “Texas GOP beats back challengers from the right.” The Times reported that “conservatives inspired by Senator Ted Cruz largely failed to topple mainstream incumbents”—largely because Stockman and Pierson lost.
From these write-ups, you would never guess the significance of incumbent Lieutenant Governor David Dewhurst’s poor showing. Dewhurst, whose U.S. Senate dreams were toppled by Ted Cruz in 2012, managed only 28 percent, while his challenger, the pro-life, pro-Tea Party state Senator Dan Patrick, hit 44 percent. The two will run off May 27 but things don’t look great for Dewhurst. The lieutenant governor, who occupies the state’s most powerful office, has personal wealth that can provide whatever funds he needs, but Patrick’s fan base is larger—in addition to being a state senator, he’s a talk-radio personality in the state.
Results shook out similarly in the attorney general’s race, where Tea Party-backed state Senator Ken Paxton got the most votes and will run off against state Representative Dan Branch. You’d also have no idea that veteran state Senator John Carona, one of only a few moderates left in the Texas senate, had fallen to a Tea Party challenger, as did a handful of state representatives. Stockman may have garnered the most national attention, but he was never a serious contender. He ran a haphazard campaign that received little support from the state’s strong Tea Party network, despite his extreme rhetoric.
So how did Politico and the Times miss the big picture? Texas is complicated because there’s no binary opposition between “establishment” candidates and those affiliated with the Tea Party. Should we define “establishment” as Speaker of the House Joe Straus, who has himself a relatively moderate record but has presided over one of the state’s most conservative legislatures? Outside Tea Party groups have tried to topple Straus, yet he also commands support from Tea Party-backed state representatives. Or is the “establishment” closer to Governor Rick Perry, the state’s longest-serving governor, who gave one of the first major speeches at a Tea Party rally in 2009? Or is it David Dewhurst, who hung tight to Perry’s message, passed extreme measures, but then watched his political dreams crumble as Cruz rose to power by accusing Dewhurst of being a moderate?
There’s no clear leader of the Texas right. Cruz may be the current face of the Tea Party movement, but he’s busy gumming up the gears in Washington; when it comes to state politics, particularly in a dominant party with several different factions, there’s a lot more to consider than just Cruz’s endorsement. Ever since his “oops” moment while running for president, Perry’s iron fist has been slackening back home. And Empower Texans, the state PAC that frequently bullied elected officials with threats of a primary challenge, managed to annoy too many incumbents and is now facing ethical charges.
Incumbency is the least helpful method for judging whether someone is Tea Party or establishment. This is the Tea Party’s third election cycle. The candidates of 2010 are now veteran lawmakers, and many moderate Republicans have peeled off over the last four years. Plus, a number of prominent party members currently affiliated with the Tea Party predated the movement anyway. Arguing that the right is getting beat back because incumbents largely escaped unscathed misses the whole point. Many incumbents are Tea Party already.
In the attorney general’s race, for instance, three candidates ran. Ken Paxton, a state senator who, as a House member, challenged Straus for the speakership and earned plenty of Tea Party accolades, got the most votes and will run off against Dan Branch. Branch is a state representative from Dallas’s wealthiest suburb, and he’s been a loyal Straus lieutenant. That’s relatively straightforward until you throw Barry Smitherman in the mix. Smitherman came in last, but during the campaign he may have won the award for most extreme comments, including his promise for a “conservative crusade.” So is his loss a loss for the Tea Party? Don’t tell that to Paxton.
The Tea Party isn’t monolithic and it sure as hell isn’t represented solely by national fundraising groups like FreedomWorks or figures like Ted Cruz. There are rural Tea Partiers and suburban ones who are bound to have different views on issues like public schools or water policy. There are stylistic differences and substantive differences, from those who are more libertarian to those who are more business-oriented, and of course the social conservatives. They all hate President Obama, but that doesn’t mean they’re all going to look just like Ted Cruz.
The “movement” may no longer be the powerhouse it was in 2010, and certainly its splintering means there’s no central “Tea Party voice.” But Tuesday night’s results don’t show the ultra-conservative candidates fading away. Maybe by the May runoffs, the national media will see that too.
By: Abby Rapoport, The American Prospect, March 5, 2014
“The ‘Texas Miracle’ Fraud”: Turns Out It Involves Taxing The Poor To Help The Rich Get Richer
Remember “The Texas Miracle”? It was the story of how Rick Perry was going to be president because his state, Texas, was doing so much better than all the other states. Texas was doing so well, we were told, because it was very conservative: Low taxes, light regulation, and few pesky unions. We were supposed to compare Texas to California, which, we were told, was an apocalyptic mess because it was run by liberals.
Then we sort of stopped hearing about The Texas Miracle for a while, because Rick Perry forgot how to count and it no longer seemed like he was personally responsible for managing the economy of his vast state, but conservatives still enjoy telling themselves that Texas proves that their economic policy preferences are objectively superior to those of liberals. Except, well, maybe Texas isn’t that miraculous.
At Washington Monthly, Phillip Longman argues that Texas’ growth is fueled primarily by the energy boom and by population growth. And that population growth is not happening because people from other states are fleeing to Texas to avoid high taxes and onerous regulations, but because of immigration from Mexico and a high birthrate. More importantly (and probably obviously, to people who care about such things), the spoils of the Texas miracle have not been shared equally: Economic mobility is higher in California’s major urban areas than in those of Texas. Plus: “Texas has more minimum-wage jobs than any other state, and only Mississippi exceeds it with the most minimum-wage workers per capita.” Texas is falling behind various states in terms of per capita income.
As Longman concludes:
But regardless of its sources, population growth fuels economic growth. It swells the supply and lowers the cost of labor, while at the same time adding to the demand for new products and services. As the population of Texas swelled by more than 24 percent from 2000 to 2013, so did the demand for just about everything, from houses to highways to strip malls. And this, combined with huge new flows of oil and gas dollars, plus increased trade with Mexico, favored Texas with strong job creation numbers.
But for some, the good news on Texas continues apace. J.D. Tuccille, at the libertarian magazine Reason’s Hit & Run blog, points to a paper from the Federal Reserve Bank of Dallas showing that Texas created more high-wage jobs than low-wage ones between 2000 and 2013. Tuccille also points out that “in 2012, ’63,000 people moved from California to Texas, while 43,000 in Texas moved to California.’” (That… actually seems pretty statistically insignificant when we’re talking about the two most populous states in the union, each with more than 25 million residents, but ok, sure.)
Even if it is the case that the Texas miracle is driven primarily by a resource boom and population growth, conservatives and libertarians could still argue that Texas is booming because of their preferred policies. They support exploiting natural resources, and libertarians, at least, support open borders. To use another example, while it’s a fact that North Dakota’s economic boom is happening almost solely because North Dakota happens to be on top of tremendous amounts of very valuable natural resources that recently became easier to extract, conservatives would argue that they are the ones who support drilling that oil, damn the environmental consequences.
But here’s one important fact that Texas’ conservative and libertarian boosters reliably fail to mention (perhaps because they don’t know it): If you’re not rich, Texas is not actually a low-tax state. In fact, most Texans pay more taxes than most Californians. That seems strange and incorrect at first — Texas doesn’t even have an income tax! — but it’s true. Thanks to sales and property taxes, Texas is among the states with the ten most regressive tax systems. Texans in the bottom 60 percent of income distribution all pay higher effective tax rates than their Californian counterparts. Texas’ top one-percent are the ones enjoying the supposed low-tax utopia, paying an effective rate of 3.2 percent. The rate for the lowest 20 percent is 12.6 percent. Kevin Drum has a helpful chart.
This is not unusual for a conservative state. As the Institute on Taxation and Economic Policy says: “States praised as ‘low tax’ are often high tax states for low and middle income families.” So… is this part of the conservative policy package that we are supposed to introduce everywhere to spur growth? Slash taxes for the rich and raise taxes on… the poor and middle class? It seems like it might be difficult to campaign on that.
When “growth” is its own self-justifying goal, creating an economy that only delivers for a privileged few doesn’t really seem like a problem. Still, don’t move to Texas expecting a better life, unless you own a petrochemical refinery.
By: Alex Pareene, Salon, March 7, 2014
“Right vs Far-Right In Texas Primaries”: ‘GOP Establishment’ Has Co-opted The Tea Party With Its Own Savage Rhetoric And Policies
Yesterday was arguably the first big Election Day of the 2014 cycle, with Texas holding Republican and Democratic primaries statewide. And with Gov. Rick Perry (R) stepping down after 13 years as the state’s chief executive, voters saw competitive contests up and down the ballot, creating frenzied races Texans hadn’t seen in a while.
As the dust settles, it appears most of the establishment candidates prevailed. This New York Times piece helped summarize the conventional wisdom about the larger implications.
Establishment Republican leaders on Tuesday defeated challenges from the right in a statewide primary election as conservatives inspired by Senator Ted Cruz largely failed to topple mainstream incumbents, and a race for lieutenant governor headed for a runoff.
Similarly, the headline from The Hill reads, “Top Texas Tea Party challengers flame out.”
With candidates like Sen. John Cornyn (R), Rep. Pete Sessions (R), and gubernatorial nominee Greg Abbott (R) easily dispatching rivals from the fringe, the notion that the GOP establishment reasserted itself certainly makes sense.
But it’s best not to push these assumptions too far. Ed Kilgore had an item on Monday – the day before the primary – about the likely results, which rings true two days later: “If no Tea Party insurgents … score a major victory, you will hear some observers declare the movement dead or dying, right there in Ted Cruz’s backyard. Others (myself included) will note that thanks to Cruz and following Rick Perry’s earlier lead, the ‘Republican Establishment’ in Texas has largely coopted the Tea Party movement with its own savage rhetoric and policies.”
If the top-line takeaway is that the GOP Establishment won and the Tea Party faltered, some might get the impression that more moderate conservatives prevailed over voices of extremism. That impression would be mistaken. Federal lawmakers like Cornyn and Sessions became some of the most conservative members of Congress in recent years as Republican politics in Texas became more radicalized.
In other words, yesterday pitted very conservative Republicans against hyper-conservative Republicans. That the former scored victories isn’t exactly a win for the American mainstream.
Looking ahead, Abbott, Texas’ attorney general, will face state Sen. Wendy Davis (D) in a high-profile match-up that’s likely to be a very expensive contest.
Also keep an eye on Rep. Ralph Hall (R), a long-time incumbent who was pushed yesterday into a May 27 runoff primary.
And perhaps most interesting of all will be the Republican runoff in the race for lieutenant governor.
Texas Lt. Gov. David Dewhurst (R) has been forced into a primary runoff and trails his challenger, sports broadcaster Dan Patrick (R).
Patrick leads Dewhurst by 43 percent to 28 percent with 24 percent of precincts reporting. The Associated Press has called that the race will head to a runoff.
In 2012, Dewhurst was the early frontrunner in the open U.S. Senate race, before he got crushed by Ted Cruz. As yesterday’s primary results helped make clear, his career hasn’t recovered well.
By: Steve Benen, The Maddow Blog, March 4, 2014
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