In the Abortion Wars: A Judge Speaks of Women’s Rights, Women’s Needs

This article first appeared on Huffington Post

U.S. District Judge Myron Thompson, in his recent ruling that Alabama’s abortion law must go to trial, raises the interesting issue of an “undue burden” on pregnant women.

Imagine that. Bringing the focus around to women.

In the frenzy to ban abortion anywhere, anytime that’s currently going on across the U.S., it is all about the fetus. Opponents of choice and sponsors of restrictive laws often frame their measures as “protective of women,” as if wider hallways, more parking spaces or the host of line items proven to be medically inappropriate were aimed at anything but preventing women from having abortions. Once fertilization happens, the zygote takes precedence.

It’s heartening, therefore, to have a judge speak about the person who is solely able to know the full circumstances: the woman.

The specific issue in Alabama – as with states including Texas where it’s being used to force clinic closures – has to do with requiring doctors to have hospital admitting privileges. There is extensive evidence that admitting privileges are unnecessary. An in-depth article by Imani Gandy of RH Reality Check titled “Why Admitting Privileges Laws Have No Medical Benefit” covered some of that evidence: only a tiny fraction (less than 0.3%) of women experiencing complication from abortion require hospitalization; the risk of death from childbirth is 14 times that of abortion; should something go wrong with an abortion, the ambulance EMT can make the appropriate choice of hospital.

Other laws, such as those restricting medical abortion or many citing physical details of abortion facilities, are cloaked in “protecting women” language. They do exactly the opposite.

Abortion opponents cheer passage of these laws for one reason: they create more roadblocks to abortion. Thus, opponents reason, more women will be denied access, forcing them to bring unwanted pregnancies to term. It is hard to find any good news for women here.

But Judge Thompson said, in an 86-page opinion, that the Alabama trial will focus on whether the law violates women’s constitutional rights by imposing “a substantial obstacle,” possibly placing an “undue burden” on women seeking an abortion. Since abortion clinics more often than not use traveling physicians, the law could result in closure of all but two of Alabama’s five facilities. Alabama has a total land area of 52,419 square miles. It’s hard to believe there would not be an undue burden on countless women required to travel very long distances to exercise their constitutional right to an abortion.

Not all judges seem overly concerned with women. In letting the Texas admitting privileges law stand, Judge Edith H. Jones of the extremely conservative Fifth Circuit Court of Appeals located in New Orleans said she did not believe that driving 300 miles round trip would pose a serious obstacle to Texas women seeking abortions. Judge Jones spoke of good highways and 75 mph speed limits as if the impoverished women of the Rio Grande Valley all had Cadillacs at their disposal.

And more recently, District Court Judge David C. Bury let stand an Arizona law restricting the use of the drug mifepristone to the first seven weeks, despite extensive evidence that it can be safely taken outside doctors’ offices through the ninth week of pregnancy. What this means is that countless Arizona women, unable to have the safer, preferable medical procedure, will be forced to have more expensive and complex surgical abortions… and to travel hundreds of miles, twice to comply with the regulations. But this does not concern Judge Bury. None of that, he wrote, qualifies “as irreparable harm.”

For now, Judge Thompson’s words offer some solace, whether or not his decision ultimately goes in favor of the women of Alabama.

“If the court finds that the statute was motivated by a purpose of protecting fetal life, then the statute had the unconstitutional purpose of creating a substantial obstacle,” Thompson wrote in his opinion. “Evidence establishing that the legislature passed a statute with the purpose of closing down the clinic would suffice to establish a constitutional violation.”

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