By Dave Andrusko
Last Friday, a three-judge panel of the U.S. 5th Circuit Court of Appeals heard arguments from the state of Texas and the Center for Reproductive Rights which is representing a coalition of abortion providers over whether Texas will be allowed to enforce a key provision of House Bill 2, the omnibus 2013 pro-life bill.
The oral arguments came exactly one week after U.S. District Judge Lee Yeakel wrote that the requirement that abortion clinics meet the same building standards as ambulatory surgical centers “burdens Texas women in a way incompatible with the principles of personal freedom and privacy protected by the United States Constitution for the 40 years since Roe v. Wade.” The requirement had been scheduled to take effect last Monday.
As reported by NRL News Today Yeakel also partly rolled back a rule that a three-judge panel of the 5th district had already allowed to go into effect—the requirement that abortionists have admitting privileges at a hospital within 30 miles of the abortion clinic. He concluded this requirement should not apply to Whole Woman’s Health in McAllen and Reproductive Services in El Paso.
Yeakel had already once struck down that admitting privileges requirement only to be reversed by the appeals court panel comprised of Judges Edith Jones, Catharina Haynes, and Jennifer Walker Elrod which held the requirement was constitutional “on its face.” Undeterred, Yeakel revisited the admitting privileges challenge “as applied” in his decision.
He wrote, “The court concludes that the act’s ambulatory-surgical-center requirement, combined with the already-in-effect admitting-privileges requirement, creates a brutally effective system of regulation that reduces access to abortion clinics.” Together, he concluded, these provisions “place an unconstitutional undue burden on women throughout Texas and must be enjoined.”
The three judge panel that heard Texas Solicitor General Jonathan Mitchell and the Center for Reproductive Rights’ Stephanie Toti on Friday was comprised of a different mix of judges from the panel that unanimously upheld Texas’ admitting privilege law and another panel that struck down a similar 2012 Mississippi law.
Reporting for Houston Public Media, Carrie Feibel wrote that (as you would expect) the core argument was whether this requirement imposed an “undue burden” on women seeking an abortion and what percentage of women the law would affect.
According to Feibel
Both sides agreed that if the 11 clinics close, women in the Rio Grande Valley would have to travel more than 200 miles to San Antonio to get an abortion under the new law. But Jonathan Mitchell, the Texas solicitor general, said there was no good evidence that women weren’t figuring out how to deal with that and no evidence that if the abortion rate in Texas had fallen, that it was related to the law.
“An abortion law cannot be enjoined based on conjecture,” Mitchell said. Judge Jennifer Elrod questioned him about a clinic’s survey of 20 patients presented at the trial in August. An expert testifying for the clinics said one patient surveyed said she did not get an abortion after the law, known as HB2, went into effect.
“He did not report she was unable to get it, he did not report she encountered an undue burden,” Mitchell answered. “She could simply have changed her mind.”
Furthermore, patients in El Paso, where another clinic might close because it is not an ambulatory surgical center, could just travel to New Mexico for an abortion, Mitchell added.
Toti countered that women “were facing numerous burdens exercising their constitutional right to an abortion,” according to Feibel. Toti also referred to a health outreach worker who, she said, “testified at the trial that women were experiencing obstacles due to the clinics closing in Rio Grande Valley.”
In his rebuttal Mitchell described this testimony as “vague.” Not only could the health outreach worker not give specific numbers of women, she could not “provide evidence that those choices were related to the effects of HB2.”
Mitchell asked the panel to allow the state to immediately enforce the law. The judges did not indicate when they would issue a ruling.