Abortion providers have failed to prove that the hospital-admitting privileges provision of the controversial abortion regulations of House Bill 2 has actually created an undue burden on women seeking abortion, the state of Texas argued Monday morning before a three-judge panel of the 5th U.S. Circuit Court of Appeals – and the judges' questions and comments during the roughly 50-minute hearing suggested they are inclined to agree.
Texas Solicitor General Jonathan Mitchell told the three female judges hearing the appeal that they should reject a lower court ruling finding the provision unconstitutional. "Each of the conclusions" reached by federal district Judge Lee Yeakel in an October ruling invalidating the provision "is wrong and should be reversed," Mitchell said.
At specific issue is a provision of the controversial HB 2, passed during a special-called session of the Legislature last summer, that requires all abortion-performing doctors to have hospital-admitting privileges within 30 miles of each facility at which they perform the procedure. Abortion providers from across the state – including Planned Parenthood and Whole Woman's Health – sued, arguing that the unnecessary provision presents an undue burden to women seeking access to legal abortion care. According to research presented at the three-day trial in October by UT Professor Joseph Potter of the Texas Policy Evaluation Project, if the admitting-privileges requirement already in force is allowed to persist, up to a third of the state's 36 abortion clinics will close, leaving more than 22,000 women annually without access to care.
After the trial, Yeakel agreed that the provision was unconstitutional; the state quickly appealed to the 5th Circuit and won a stay pending a full appeal. (The providers appealed to the U.S. Supreme Court to reinstate Yeakel's ban in the interim, but lost, 5-4.) The day after the law took effect, 14 of the state's clinics found themselves without the ability to provide abortion care. Since then, three have gained privileges, leaving 11 clinics still closed, including the only two providers in the entire Rio Grande Valley.
Among the state's main arguments during the Jan. 6 appeal hearing was that the providers' assessment of the damage done to abortion care infrastructure was wrong: Clinics that they said would close forever are now open, Mitchell said. So there is "no way for the plaintiffs to prove, with reliable evidence, what the effects" of the law would be before it took effect, he told the panel, which included former Chief Justice Edith Jones joining Judges Jennifer Elrod and Catharina Haynes, both members of the panel that initially blocked Yeakel's ruling.
The law was not passed in order to impose a "substantial obstacle" on any woman seeking abortion and has not done so, Mitchell argued. Instead of attacking the law as unconstitutional on its face, the plaintiffs should have waited until the provision was enacted and then challenged its impact on an as-applied basis. Mitchell said Texas is only required to demonstrate that the 30-mile privileges provision isn't burdensome everywhere, he told the judges. "Because they brought a facial challenge and they're demanding total, across-the-board invalidation, their burden is to show that [a] 30-mile radius is unconstitutionally burdensome everywhere throughout the state," he said. "And as long as we can show at least one part of the state where the ... requirement does not impose an undue burden, the facial challenge fails."
"Clearly" there are plenty of areas where HB 2 hasn't been a problem, Judge Haynes noted, including in Dallas, Houston, and San Antonio. "It may be a problem in the Rio Grande Valley," Haynes said to Janet Crepps of the Center for Reproductive Rights, who argued on behalf of the plaintiffs. "Why not then bring an as-applied, post-enactment ... challenge and address the [Valley] or the southern part of Texas, if there really is a problem there?"
Crepps countered, "We brought a facial challenge because it's the only way we could prevent this law from denying women their constitutional right to obtain abortion," Crepps said. "The evidence showed that when the law took effect, women would be denied."
The judges, and particularly Judge Jones – who was the author of the 2012 opinion that validated the Texas sonogram law and truncated the appeal process – seemed unimpressed with the plight of women who would have to travel long distances. That is of particular concern in the Valley, where economic conditions can make it quite difficult to secure a means to travel. Thanks to the admitting-privileges provision there are now no abortion providers in the Valley, Crepps began, and women there are "forced to travel ..."
"To Corpus Christi," Jones cut in.
"... approximately 150 to 300 miles roundtrip," Crepps finished.
"Do you know how long that takes in Texas at 75 miles an hour?" Jones asked.
"I understand, your honor, but ..." Crepps began.
"This is a peculiarly flat and not congested highway," Jones opined, "so ..."
But should the question of distance even enter the argument?, Judge Elrod asked. In a case the Supreme Court decided in 1992 (Planned Parenthood v. Casey) the court didn't consider the distance that women would have to travel in Pennsylvania, where the case originated. The court found that "the substantial obstacle standard" set out in Casey "is a fact-based inquiry," Crepps responded – while distance might not be a burden in Pennsylvania, it very well could be in Texas. And the "shortfall of providers" in Texas combined with the 30-mile privilege requirement has resulted in "women being completely unable to get abortions," she said.
But the lack of providers in Texas wasn't created by HB 2, Haynes noted. She said that while there are some 2,500 members of the American Congress of Obstetricians and Gynecologists in Texas, a group that has declared its opposition to the admitting-privileges provision, only a few doctors actually perform the procedure. "[I]f that group of doctors actually provided abortion, which they believe is an essential health service, you wouldn't have this issue – we wouldn't even be here," she said. "The problem is ... that there was a dearth of providers before HB 2; that is not a creature of HB 2's making."
Crepps said that Casey requires that the shortage of providers be considered an "existing [fact] on the ground" to be considered when determining an undue burden. "These circumstances exist and yet allowed for the provision of abortion [in Texas], but for ... the burdens imposed by HB 2," Crepps argued. "So here I think we can see a very direct result of HB 2: Before there were abortion providers in the [Valley]; now, there are none."
The 5th Circuit has no timeline to rule; any appeal would go to the U.S. Supreme Court.
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