Fifth Circuit Hears Texas Abortion Law Arguments

Two of three judges on panel previously upheld anti-abortion laws

Fifth Circuit Hears Texas Abortion Law Arguments
by Illustration by Jason Stout.

This morning, a largely conservative New Orleans appellate court heard arguments that will ultimately decide the future of more than a dozen Texas abortion clinics.

The case centers on two provisions of House Bill 2 – costly changes that force clinics to meet the same building requirements as ambulatory surgical centers, and a rule that mandates abortion physicians acquire hospital admitting privileges within 30 miles of where each procedure is performed, as it applies to clinics in McAllen and El Paso. If enforced, the law is expected to close all but seven abortion clinics in the state.

While abortion providers continued to make the case that HB 2 endangers patients and fails to promote the health and safety of women, the state, again, offered up its rebuttal that it is far from an “undue burden” and the majority of women will not be affected by the stringent law.

On Aug. 29 – just days before the final provision of the law was set to take effect – U.S. Judge Lee Yeakel ruled two sections of the Texas’ abortion law unconstitutional, concluding that the law placed an “undue burden” on abortion-seeking women. His decision prevented the closure of roughly 15 clinics statewide. Attorney General Greg Abbott subsequently appealed the ruling and called for an immediate stay, claiming the state was “suffering immediate injury” from the purported injunction against the already in effect admitting privileges law. The 5th Circuit clerk chastised Abbott’s office for tardiness and denied his “emergency” motion. They did, however, schedule oral arguments before a select group of judges.

The decision now falls to a three-judge panel, a mixed-bag in terms of how they rule on reproductive rights restrictions: Justice Jennifer Walker Elrod, a George W. Bush appointee, sat on a panel that previously blocked Yeakel’s ruling and sided with the state on the hospital admitting privileges rule; Justice Stephen Higginson, appointed by Barack Obama, voted against a similar hospital admitting privileges law in Mississippi that would have closed the lone abortion clinic in the state; and then there’s Ronald Reagan-appointee and former Harris County GOP Chairman, Justice Jerry Smith, who upheld Texas’ preabortion sonogram law and single-handedly struck down a decision by Yeakel that banned enforcement of a Texas rule barring Planned Parenthood from a Medicaid program.

Smith may not curry favor with pro-choice advocates for his track record of offending women – while serving as Republican Party chairman, he (ever so charmingly) called feminists a “gaggle of outcasts, misfits, and rejects" and referred to the League of Women Voters as the "Plague of Women Voters,” according to a July 1987 Houston Chronicle article.

Interrupting the beginning of Texas Solicitor General John Mitchell’s argument today, Smith questioned the state claim of “irreparable harm,” and, echoing the 5th Circuit clerk’s response to Abbott, lightly rebuked the A.G.’s office for delaying its motion. Smith said he and the other circuit judges waited “on alert” by their computers all weekend until 11:59pm on Sunday (a whole two days following Yeakel’s expectedly adverse ruling and one day after the state's notice of appeal) when the motion came in. At that point, there was “no time” for the other side to respond or for the court to read and consider the motion, he said.

“I am a little bit perplexed about the way it was handled by the state,” said Smith. “[...] We thought you felt strongly enough about irreparable harm that you would be filing a motion for stay [...] We waited during the day Saturday, you said the motion for stay would be forthcoming – it didn’t, it was not forthcoming.” (Mitchell said they filed it as quickly as they could.)

The arguments reiterated the key points made in Austin last month: Mitchell denied HB 2 caused the closing of more than half of Texas clinics and said plaintiffs failed to show that a large fraction of women will be forced to travel long distances to access abortion services. Stephanie Toti, with the Center for Reproductive Rights, countered empirical evidence exists to show the abortion rate has decreased since the first parts of HB 2 went into effect and stated that the law will, indeed, pose an undue burden on abortion-seeking women as a result of substantially increased travel time and distance to clinics.

Noticeably aggressive in questioning Toti (“A decrease in abortion providers doesn’t tell us whether women face an undue burden – does it?,” said Elrod, while hammering the plaintiff with rapid-fire queries) and supportive of the state’s arguments, Elrod may have already shown her cards on how she will vote. The court is expected to rule within one to two weeks; however, there is no certain deadline.

Listen to audio of the arguments here.

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House Bill 2, Reproductive Rights, 5th Circuit Court of Appeals

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