HB 2 Returns to Court

The fight against Texas abortion laws that pro-choice advocates began at the Capitol in 2013 isn't over. (photo by John Anderson)

In New Orleans last Wednesday, Jan. 7, justices on the notoriously conservative 5th Circuit Court of Appeals delivered a critical line of questioning during a hearing to determine the fate of the final provision of Texas' draconian abortion law, House Bill 2.

The first three parts of the four-part HB 2 have already gone into effect: a rule that requires physicians to obtain admitting privileges at a hospital within 30 miles of the clinic where they perform the procedure; a rule that mandates patients follow outdated FDA protocol when ingesting abortion medication; and an abortion ban after 20 weeks of pregnancy.

At issue now is a rule that forces clinics to make costly building updates in order to comply with ambulatory surgical center (ASC) standards. The current suit also seeks to strike down hospital admitting privilege requirements for clinics in McAllen and El Paso – underserved, minority-populated areas. If the final provision of the law goes into effect, it is expected to leave only seven abortion providers for the state's 5 million reproductive-age women.

U.S. Judge Lee Yeakel deemed the ASC provision unconstitutional in August, and the state quickly appealed. The 5th Circuit reversed Yeakel's decision, putting the rule into effect in October. Plaintiffs appealed to the U.S. Supreme Court, which temporarily halted the law on Oct. 14.

While news of which judges would hear the case – all George W. Bush appointees, including two who previously upheld parts of HB 2 – didn't put abortion providers at ease, the judge's responses to Wednesday's oral arguments proved surprisingly refreshing, giving abortion providers and pro-choice advocates some encouragement.

From the outset of the hearing, which wound up lasting twice as long as the allotted time, Judge Catharina Haynes, directing her questions to state Solicitor General Jonathan Mitchell, expressed doubt over how the ASC physical plant requirements improve women's safety. The construction changes – which include building janitorial closets and expanding doorways – are estimated to cost millions for abortion providers, many of which are modest, independent clinics unable to afford the hefty price tag. (For instance, a 7,000-square-foot building would cost in the ballpark of $5 million.) Plaintiffs argue these requirements are wholly unnecessary and amount to a "multi­million dollar tax" on abortion providers. Mitchell said the rules improve the sterility of the clinic. "Then why can't you have a sterile operating environment in a 3,000-square-foot [clinic]?" asked Haynes.

Noting the hundreds of miles women in West Texas will be forced to travel if the ASC rule goes into effect, Haynes hypothesized a "bleeding event" scenario that could place a woman in danger, and run counter to the state's ostensible intention of increasing women's safety. "If a woman starts profusely bleeding [on the road to a provider], isn't that a problem? Isn't that the antithesis of what the state is trying to promulgate?" Mitchell said, as he has before, that a woman in El Paso can obtain closer services in New Mexico; however, the neighboring state does not have a law with the same requirements as Texas' HB 2, raising questions over the state's true purpose in defending it.

Later, Stephanie Toti of the Center for Reproductive Rights, said there was "no good reason" to force women to travel to another state for abortion care. "Texas is essentially forcing its own abortion providers out of practice because it says these requirements are necessary to advance patient health and safety, but then it's shuttling those patients across the border [to New Mexico] where those requirements aren't in force," said Toti, underscoring the state's hypocrisy. When pressed about the seeming contradiction by Haynes – "Aren't you undercutting your argument?" – Mitchell replied, "I don't see that it's hypocritical at all ... we can't stop our patients from traveling out of state." Yet he did acknowledge the care women would receive in New Mexico would be "less than optimal."

However, Haynes also cast some skepticism on plaintiffs' claims regarding ASC changes and the number of women affected, and questioned whether the district court's order – which struck down HB 2 – was "overly broad."

As a result of HB 2, the number of abortion clinics in Texas has been cut more than half, from 41 to 17, with two under construction and not yet operating. If the ASC rule is enacted, seven will remain, leaving abortion care up to 500 miles away for women who live west or south of San Antonio.

On a press call following the hearing, Amy Hagstrom-Miller of lead plaintiff Whole Woman's Health – a network of reproductive health providers, including a now closed Austin center – said she was "very encouraged" and "impressed" by Haynes and Elrod's critical line of questioning. She said the justices "took seriously" the undue burden placed on women, especially in west and South Texas, and she was pleased by the ample time spent bringing to light the "illogic" of the New Mexico argument. In particular, she appreciated when Haynes cast doubt on the ASC rule's benefit to the health of Texas women. In this instance, the 5th Circuit has at least "paid attention to the evidence" plaintiffs put forward, said Hagstrom-Miller.

But, as past rulings at the 5th Circuit have proven, it's difficult to be optimistic about the outcome on matters of abortion rights and reproductive health. Plaintiffs say the appellate court will rule within the next couple of weeks. In the event the panel rules to uphold the law, plaintiffs won't hesitate to appeal to the U.S. Supreme Court to reinstate the lower court's injunction, and the state is expected to do the same if the panel affirms that injunction. "We are very committed to challenge this all the way up to the Supreme Court if need be," Hagstrom-Miller said.