The Texas Legislature uses the state’s vast distances to impede people’s rights. (David Sucsy / iStockphoto)
Texans often boast that “everything is bigger in Texas.” Yet when it comes to Texans exercising their constitutional rights, the U.S. Court of Appeals for the Fifth Circuit has shown itself to be consistently in denial that the Texas Legislature effectively uses those vast distances to impede the exercise of fundamental rights.
In decisions about both the right to vote and to an abortion, the Fifth Circuit insists on discounting or ignoring altogether the lived realities of many who lack the time or money to travel great distances. In the abortion context, that travel is to one of a shrinking number of abortion providers. In the voting context, the court has simply refused to acknowledge the burden of getting to a Texas Department of Public Safety office to get the requisite voter ID.
The abortion cases and the ­voting rights case share a legal standard, at least nominally: wheth­er the state legislation creates an undue burden on the fundamental right in question. In failing to recognize that material spatiality — sheer distance — can constitute such a burden, the court is undermining the constitutional rights of millions of Texans, primarily those living in rural areas and smaller cities.
The Fifth Circuit issued the latest in a string of metro-centric decisions last month in Lakey v. Whole Women’s Health. The court upheld Texas House Bill 2, which requires abortion providers to meet ambulatory surgical center requirements. That decision would have shuttered half of the state’s remaining abortion providers last week had the U.S. Supreme Court not stayed the ruling on June 29. Lakey comes quick on the heels of the 2014 decision in Planned Parenthood v. Abbott, which reduced the number of abortion providers in Texas from 44 to 18 when the court upheld a separate House Bill 2 requirement that abortion providers have admitting privileges at a nearby hospital.
150 MILES FROM ABORTION PROVIDER
The Lakey court acknowledges that the full implementation of House Bill 2 leaves 900,000 Texas women of reproductive age (about 17 percent) more than 150 miles from an abortion provider, yet it sees no constitutional infirmity in that state of affairs. Nor does it credit as relevant the fact that many of these women are poor. The court grapples with distance, but in a peculiarly inconsistent, piecemeal way, analyzing the situation of women in west Texas differently from those in the Rio Grande Valley. Access to safe and legal abortion in Texas — already decimated by Abbott — is vanishing for many more under Lakey.
But it is not only in the abortion context that the Fifth Circuit has shown itself oblivious to the impact that Texas laws have on those living outside metropolitan areas. In Veasey v. Perry, the Fifth Circuit in October 2014 upheld a Texas law that required voters to show an identification card that typically must be issued by the Department of Public Safety. The U.S. Supreme Court affirmed, but Justice Ruth Bader Ginsburg in dissent pointed out that this meant that more than 400,000 eligible Texas voters “face round-trip travel times of three hours or more to the nearest [department] office.”
The Supreme Court is partly at fault because it has not taken seriously the lived realities of poor and rural residents. The court has failed to rule definitively on how far is too far for the state to force a resident to travel to exercise a fundamental right. The Fifth Circuit has read Planned Parenthood v. Casey (1992) to suggest that a three-hour journey to an abortion provider does not constitute an undue burden. Crawford v. Marion County (2008) failed altogether to discuss distance in relation to getting a voter ID.
Of course, no court is likely to confront an issue unless the parties force it to. Neither pro-choice nor voting-rights advocacy groups have optimized the prospects that courts will see that poor, rural residents need more than grit and determination to exercise these core rights in the face of draconian legislation intended to curb civil liberties.
As a nation, we increasingly are attuned to the difference place makes with regard to a wide range of issues. We use maps to illustrate spatial inequal­ities with regard to upward mobility, educational quality and the likelihood of marriage, just to name a few. But when it comes to constitutional rights that implicate spatiality, federal appellate courts appear largely clueless about the burden of distance. In ratcheting up the undue-burden standard as it recently has, the Fifth Circuit is a particular culprit, showing virtually no understanding of Texas’s poor and rural populations, let alone solicitude for them. The Supreme Court has an opportunity to do better if it grants certiorari in Lakey, but the plaintiffs must do their part to focus the court on the burden of distance.
We need to reverse this trend of playing down the obstacle of distance. Devotion to democratic and inclusive values requires that courts give thoughtful consideration to rural populations. Their constitutional rights should be equally as revered as those of their city cousins.