5th Circuit, Abortion, Health Care / Medicine, Politics, Texas

Ebola And Abortion: Two Words No One Likes To Hear But Everyone Can Learn From

What do abortion and Ebola have in common?

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It has been an intense week in the Lone Star State. A rough week to be Texas Department of Health Commissioner David Lakey, to be sure. When either of the words “abortion” or “Ebola” enter local headlines, it’s not a slow news week. Texas headlines have had both.

On Thursday, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit ruled that the State of Texas can begin implementing controversial parts of HB 2, the law placing new restrictions on the facilities authorized to perform abortions. Though a district court ruled earlier that HB 2 violated some Texas women’s rights by placing an undue burden on their access to abortion, the Fifth Circuit disagreed.

Meanwhile, Texas officials confirmed this week that a man in Dallas is infected with the Ebola virus. Thomas Eric Duncan contracted the deadly disease while in Liberia earlier this month, although his symptoms did not manifest until last week. In Liberia, Duncan reportedly helped care for a neighbor’s daughter who later died of Ebola. A few days later, Duncan boarded flights to Brussels, then Dulles, then Dallas. Nine days after his contact with the infected woman, while visiting Texas, Duncan became ill. And now every person in the Dallas-Fort Worth Metroplex who ate bad sushi this week, or caught a stomach bug, is looking at their symptoms with a whole lot more suspicion and dread than usual. Because this is pretty damned terrifying.

What do abortion and ebola have in common (aside from making David Lakey’s life miserable this week)?

Both the new restrictions on abortion facilities in Texas and the government intervention to manage the Ebola threat are potent reminders of why expectations that our lawmakers and leaders will protect public health and safety should always be matched with a healthy dose of skepticism. We grant them sweeping authority in the areas of health, safety, and welfare. This power is not only broad in scope, but broad in discretion. There are constitutional minimums to protect citizens from gross overreach, but they are relatively few. And they do not always prevent lawmakers and officials from using their authority in this area to effectuate other, less laudable aims. Perhaps ironically, this is one point on which people from the extreme left and the extreme right can agree.

Critics and challengers of the new abortion law claim that, while the legislation purports to be aimed at public health, it is merely a tool for coming as close to outlawing the procedure as the law will allow under Roe v. Wade. On its face the new law mandates that clinics offering abortions outside of hospitals must meet the regulatory standards currently placed on ambulatory surgical centers. The law also insists that doctors performing abortions must have admitting privileges at a hospital within 30 miles of where the abortion is performed. Critics contend that legislators knew that these restrictions would force closure of most of the state’s abortion clinics. It wasn’t greater safety they were after; it was preventing abortion.

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If I pretended that I wasn’t perfectly happy to see abortion clinics close, I would be disingenuous. Nevertheless, I would be much happier seeing abortion clinics close for reasons other than state regulatory action. I would rather that clinics close for lack of business. The demands of the law may hinder some women’s convenient access to abortions by closing subpar facilities, but it does not place an undue burden on women seeking the termination of their pregnancies. Just because I hate abortion, just because I think the law at issue satisfies constitutional minimums, does not mean that I consider the law or its implementation a victory. I still bristle at increased government oversight through regulation.

Liberal observers are right to question the motives of legislators and officials. While I don’t think this law is motivated solely by a desire to eliminate women’s access to abortion, there’s plenty of reason for skepticism. I disagree with liberal critics’ conclusion in this case, but I don’t fault the skepticism that drives many to question whether state officials are using legal tools to strip citizens of rights.

What about Ebola? The State of Texas has issued a confinement order, forcing the three people who had close contact with the infected man to remain quarantined. Dallas County Judge Clay Jenkins issued the order after the family refused to comply with a request to stay home. Given the extraordinary risk to the public, depriving a few folks of their freedom of movement against their will for a few weeks is a price well worth paying. Nevertheless, any action by the state depriving an otherwise law-abiding citizen of a fundamental liberty always warrants caution.

Whether a particular action is grounded in the Commerce Clause of the U.S. Constitution or in the police power of the state, government at both the federal and state level can take control of situations threatening the public’s health. Section 361 of the Public Health Service Act authorizes the U.S. Secretary of Health and Human Services to take appropriate measures to prevent the entry and spread of communicable diseases from foreign countries into the United States and between States. The Centers for Disease Control and Prevention have delegated authority to detain, medically examine, and release people arriving in the United States and traveling between States who are suspected of carrying communicable diseases. States exercise similar authority. Mandatory quarantine in cases like the one in Dallas this week should make us feel just a bit safer. We want the state to intervene. But that does not mean that we should take lightly the tremendous power that we’re ceding when we trade civil liberties for the public welfare.

Zealots like Alex Jones and Glenn Beck have been warning their audiences about the looming threat of medically justified martial law, should Ebola find its way to American soil. I have no more interest in their extremism than that of advocates of abortion on demand. Just because a person like me leans right does not mean that she loses her balance and topples over into a pile of paranoia. However, just as the liberal critics of abortion restrictions get credit for a healthy skepticism of state action, so too do the people who fear that the government will eventually use hysteria over a possible Ebola outbreak to deprive citizens of important freedoms. Sensible folks can remain vigilant about civil liberties without immediately filling their closets with MREs and gold bullion.

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At the end of this week, you are still more likely to get an abortion in Texas than you are to get quarantined in Texas. Some people on the left think that the state is dangerous when it limits abortions. Some people on the right think that the state is most dangerous when it seizes power during public health threats. Both sides are a little bit crazy. Yet, both sides are right to question government action. If nothing else emerges from a really bad week in Texas, a healthy shared skepticism may be the best result there is.

Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She currently heads the Center for Legal Pedagogy at Texas Southern University, an institute applying cognitive science to improvements in legal education. You can reach her at tabo.atl@gmail.com.

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