Reporting on Abortion Litigation Excludes Impacts on Rural Women
By Lisa Pruitt

Summer 2014 has been momentous regarding litigation of the constitutional fate of abortion regulations that have proliferated in the past few years.

On July 29, a three-judge panel of the Fifth Circuit Court of Appeals struck down as unconstitutional a Mississippi law that required abortion providers to have admitting privileges at a hospital within 30 miles. The law would have closed the state’s only remaining provider, in Jackson, forcing women to travel out of state to get an abortion. The court held that the state could not foist its constitutional obligations onto other states in that way. Judge E. Grady Jolly, joined by Judge Steven Higginson, wrote: ”A state cannot lean on its sovereign neighbors to provide protection of its citizens’ federal constitutional rights.”

Judge Jolly observed that the law “effectively extinguishes [a woman's constitutional right to end a pregnancy] within Mississippi’s borders.” The court did not, however, overturn the law or decide whether it was justified on grounds of safety, which was the justification offered by the State of Mississippi. The opinion preserved a federal district court stay of the law while the federal district court considers the constitutionality of the law’s substance. 

Although I have called attention to the impact of these admitting privilege laws on rural women, the Court did not mention that group of women in particular. The New York Times coverage by Campbell Robertson and Erik Eckholm, however, closed their report on the case with a rural note: “Other hospitals, especially in conservative and rural areas, have refused to grant privileges to abortion clinic doctors in order to avoid controversy.”

This statement hints at stasis and religion in rural communities but does not touch on the issue of material spatiality as a hinderance to abortion access.  Read full New York Times coverage of the Fifth Circuit decision here.

Erik Eckholm and Manny Fernandez also mentioned rural women in their August 4, 2014 NYT story about the ongoing trial in federal district court in Austin, Texas regarding a requested injunction against a part of Texas H.B. 2 which is set to go into effect on Sept. 1. That part of the H.B. 2 law requires abortion providers in Texas to meet the requirements for ambulatory surgical centers (ASC).

Litigation about the requirement follows hot on the heels of litigation about other provisions of H.B. 2–one requiring hospital admitting privileges and the other regulating medication abortions. Those other provisions of H.B. 2 were upheld by a three-judge panel of the Fifth Circuit this spring in a decision which opined that traveling 150 miles each way to procure an abortion does not constitute an undue burden.

In any event, the Eckholm/Fernandez coverage is accompanied by useful maps that show how many abortion providers Texas had before H.B. 2 and how many they will have if the ASC requirement goes into effect. The earlier upheld provisions of H.B. 2 arguably had the greatest detrimental impact on providers in the lower Rio Grande Valley in particular because at least one clinic remained open in most of Texas’s major cities.  This ASC provision would close, among others, the only remaining clinic in the upper Rio GrandeValley, in El Paso.

Attending to the rural, Fernandez and Eckholm note that just 10 facilities are expected to remain open if the ASC provision is not enjoined by the federal district court. Here they touch on the rural-urban issue. All of those remaining facilities will be in major metropolitan areas such as Dallas and Houston, and there will be no site providing abortions in the largely rural regions west or south of San Antonio. Many women who live near the border in McAllen and other cities in the Rio Grande Valley — one of the poorest sections of Texas — have already been making roughly four-hour, 240-mile trips to a facility in San Antonio to get an abortion.

Most puzzling of all the abortion news this week–at least from a ruralist perspective–is the decision made by Judge Myron Thompson of the federal district court in Alabama on Monday. The great news is that Judge Thompson struck down Alabama’s admitting privileges law as unconstitutional.

What I still have not sorted out is the part of his opinion that dealt with rural women and urban women, which I found puzzling. In short, Judge Thompson focused on the fact that the incremental harm of the admitting privileges law would be much greater on urban women than on rural women, noting that the former already faced considerable burdens on getting an abortion. Thompson expressed particular solicitude for the women in Mobile, Montgomery and Birmingham, all cities that would lose abortion providers if the Alabama law went into effect.

Whatever his spin on abortion access along the rural-urban continuum, Thompson did offer this heartening conclusion: “If this requirement would not, in the face of all the evidence in the record, constitute an impermissible undue burden, then almost no regulation, short of those imposing an outright prohibition on abortion, would.”

Meanwhile, the New York Times coverage of Judge Thompson’s decision did not note the rural angle–perhaps not surprising given his somewhat confusing spin on the rural-urban issue.  Other media coverage of abortion news this week has also entirely overlooked these laws’ disparate spatial impacts. 

Lisa Pruitt is a Professor of Law at UC Davis and a faculty affiliate of the Center for Poverty Research.

(Article adapted from Legal Ruralism)