August 27, 2020

A lawsuit over abortion rights in Texas will affect women in New Mexico

Alyssa Schukar/Center for Reproductive Rights

Abortion rights supporters organized by the Center for Reproductive Rights rally as the U.S. Supreme Court hears oral arguments in June Medical Services v. Russo on Wednesday, March 4, 2020 in Washington.

A lawsuit over abortion rights in Texas currently pending before the federal Fifth Circuit Court of Appeals could impact women in New Mexico.

A judge is expected to make a decision on Whole Women’s Health v. Paxton in the near future, according to the Center for Reproductive Rights, which is a party to the suit.  

The state of Texas passed a law to make an abortion procedure illegal in that state in 2017. The procedure, called dilation and evacuation, is the form of abortion that usually occurs after the 13th week of gestation. The Texas case would make it illegal.

The safety of this procedure has been documented since the 1970s, according to the reproductive policy organization the Guttmacher Institute. The Institute has said that 11 percent of abortions take place after the 13th week but that 95 percent of those are a dilation and evacuation procedure.

Ellie Rushforth, an attorney with the American Civil Liberties Union of New Mexico, said the judge put the decision on hold until after the U.S. Supreme Court heard June Medical Services LLC v. Russo.

Related: A ‘win’ for abortion rights Monday doesn’t mean fight is over, say advocates

She said the Fifth Circuit Court had to wait and see if June Medical Services LLC v. Russo would overturn a nearly identical law that Texas passed in 2013 and which the U.S. Supreme Court overturned on appeal in 2016. That case, Whole Women’s Health v. Hellerstedt, and the June Medical case, involved laws in Texas and Louisiana that would require a clinic providing abortion services to have admitting privileges to a hospital within 30 miles of the clinic.

“(The Fifth Circuit Court) couldn’t pass the Paxton case because if Whole Women’s Health v. Hellerstedt had been overruled, then the (Fifth Circuit) judge would have to follow new precedent,” Rushforth said.  

But, the Supreme Court did not overturn Whole Women’s Health v. Hellerstedt. But Supreme Court Chief Justice John Roberts wrote in his opinion that he joined in the majority on June Medical Services because of the precedent the Texas lawsuit established in 2016. He wrote that he did not agree with June Medical Services’ argument and he joined the more conservative dissent on Whole Women’s Health v. Hellerstedt.

“The Chief Justice said ‘bring me a new kind of (abortion) ban and I will consider it,’” Rushforth said. “That is essentially, in its most reductive form, what the Chief Justice said. ‘This is the exact same law we considered then and we’re bound by precedent. Bring me something new and we can consider it,’ and this is something new.”

Rushforth said states pass this kind of legislation for exactly this reason: To bring laws to the Supreme Court with the hope that the highest court will “completely dismantle the standard we have,” when deciding if a state’s abortion ban is constitutional.

What happens in New Mexico

If reproductive rights groups lose the Whole Women’s Health v. Paxton case, Rushforth said it will impact New Mexico in multiple ways. First, it will likely mean that women in Texas will travel to New Mexico, including during the pandemic, to seek an abortion.

“Already when our neighboring states restrict and ban abortion, it forces patients to travel to get the care they need,” Rushforth said.

This isn’t the first time that a Texas ban on abortion has sent people who live in Texas to travel to New Mexico for the procedure. Texas Governor Greg Abbott banned abortion as part of his public health emergency orders for COVID-19 in March.

Related: As pandemic continues, abortion groups feel greater strain

Planned Parenthood of the Rocky Mountains said through an email to NM Political Report that Abbott “used COVID-19 to further his political agenda of making safe, legal abortion in Texas all but inaccessible.” Although abortion rights groups challenged the ban, the issue didn’t fully resolve until Abbott’s public health order expired in late April.

“Planned Parenthood of the Rocky Mountains health centers saw a more than ten-fold increase in abortion care (of) patients traveling to us from Texas. So we’ve already seen what the outcome of this (Whole Women’s Health v. Paxton) case could result in: an identical dynamic, forcing patients to travel hundreds of miles to access abortion care. These efforts to restrict abortion care, part of a broader agenda to end abortion access across the country, are a violation of the patient-provider relationship, which must be protected from political interference. Patient health must be the determining factor for medical decisions, not political agendas,” Planned Parenthood of the Rocky Mountains said through email.

Rushforth said if Whole Women’s Health loses the Paxton suit, then the Texas law banning the dilation and evacuation procedure would go into effect immediately. Though there would likely be an appeal, the court might not stay the law and it would remain in effect.

If that happens, then people who need an abortion in Texas could be traveling to New Mexico while the pandemic continues and the COVID-19 virus continues to spread, Rushforth said.

“From a medical standpoint, there’s no reason to deny this medical care,” Rushforth said.

Rushforth said abortion bans like the one under the Fifth Circuit Court judge’s deliberation further impact those who face systemic burdens the most, such as members of the LGBTQ community, communities of color and those who experience extreme poverty.

If Whole Women’s Health loses, similar bans held up in the courts in other states could also become legal. According to the Center for Reproductive Rights, there are seven states that have also enacted such a ban, including Alabama, Arkansas, Louisiana, Kansas and Oklahoma.

“And what we know is that as states across the country either outright or effectively ban abortion, tens of millions of people find themselves without an abortion provider, Rushforth said.

She said the existing infrastructure within New Mexico that protects the constitutional right to abortion might not be able to absorb the needs of potentially millions of people who would be without a provider in their own states if the court rules against Whole Women’s Health. 

Another potential impact is that if Whole Women’s Health loses the case in the Fifth Circuit Court, similar legislation could appear in the New Mexico 2021 legislative session, Rushforth said.

“There are anti-abortion politicians (in New Mexico). Their supporters introduce legislation every single year,” Rushforth said.

But another concern for reproductive rights advocates, is that no matter who loses Whole Women’s Health v. Paxton, the party that loses will appeal and that will push it to the U.S. Supreme Court, where a conservative majority sits on the bench.

“This is part of their strategy,” Rushforth said.

This story has been updated.