By Dave Andrusko
After hearing five days of ultra-expedited trial and argument, U.S. District Judge Lee Yeakel said today that he will rule as quickly as possible on a challenge to Texas’ HB 2 requirement that abortions be performed in ambulatory surgical centers.
Today attorneys for the plaintiffs and for the state of Texas sparred over whether the requirement places an “undue burden” on a woman’s right to abortion.
Stephanie Toti, a lawyer for the Center of Reproductive Rights, which is representing Texas abortion providers, re-visited familiar ground. First, she argued that the requirement is unnecessary and expensive. Second, that as a result of the requirement, there will be no abortion clinics operating south or west of San Antonio, according to Chuck Lindell of the American-Statesman.
“Yeakel expressed discomfort with requiring women in the Rio Grande Valley to make the 300-mile round-trip drive to the closest facility in San Antonio, asking if most people ‘would stand for’ an all-day drive to receive treatment for an ankle sprain or an appendectomy,” Lindell reported.
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“I have a problem believing it is reasonable to require anyone to travel 150 miles for medical care when they can get that medical care closer,” Yeakel said.
(Comparing sprained ankles to abortions would seem to be odd, even for a judge not particularly open to HB 2.)
But there is a very complicated backdrop to the case, the result of which everyone expects will be appealed to the full 5th U.S. Court of Appeals. For starters, one three-judge panel of the 5th Circuit has already determined that a 150-mile drive to receive an abortion does not place an undue burden on women. (See H.B. 2)
Writing for the unanimous panel, Judge Edith Jones observed
“The evidence presented to the district court [to Judge Yeakel] demonstrates that if the admitting-privileges regulation burdens abortion access by diminishing the number of doctors who will perform abortions and requiring women to travel farther, the burden does not fall on the vast majority of Texas women seeking abortions. Put otherwise, the regulation will not affect a significant (much less ‘large’) fraction of such women [women seeking abortions in a given area of Texas], and it imposes on other women in Texas less of a burden than the waiting-period provisions upheld” in the Supreme Court’s “Casey” decision.
Jonathan Mitchell, solicitor general for Texas Attorney General Greg Abbott, amplified that point today. According to Lindell, Mitchell said
“In addition Yeakel cannot strike down the surgical-center rule unless abortion clinics can prove that the regulation burdens a large percentage of Texas women. But only 9 to 10 percent of the state’s reproductive-age women will live more than 150 miles, or a three-hour drive, from a surgical center that provides abortions after Sept. 1, ‘and that is not a large fraction,’ he said.”
As NRL News Today reported, last month another three-judge panel of the 5th Circuit (on a 2-1 vote) blocked a similar law in Mississippi. But that decision was based on the argument that the situation was unique because it would close the state’s last abortion clinic. (The dissenter, Judge Emilio Garza, thoroughly debunked that argument.)
Moreover, as Matthew Steffey of the Mississippi College School of Law told the Houston Chronicle, “the 7th U.S. Circuit Court of Appeals soon could hear a challenge to a similar anti-abortion law approved in Wisconsin.”
If that weren’t enough, pro-abortionists are also trying to get the courts to revisit an earlier decision which upheld that portion of H.B. 2 that required abortionists to have admitting privileges at a local hospital.