Appeals Court peppers both sides with tough questions about Texas HB 2

 

By Dave Andrusko

Judge Jennifer Walker Elrod

Judge Jennifer Walker Elrod

If there was a common thread in the coverage of Wednesday’s oral arguments over portions of Texas’ H.B. 2, it is that the judges did what they are supposed to do: ask tough questions of the Texas solicitor general defending the law and the Center for Reproductive Rights (CRR) which brought the lawsuit.

Indeed, so engaged was the three-judge panel of the 5th Circuit Court of Appeals that Judges Jennifer W. Elrod, Catharina Haynes, and Edward C. Prado wound up asking Texas solicitor general, Jonathan F. Mitchell and CRR’s Stephanie Toti questions for 90 minutes.

NRL News Today has covered the non-stop legal wrangling for HB 2 in enormous detail. At specific issue yesterday was the part of the law that mandates that abortion facilities meet the structural requirements applicable to ambulatory surgical centers (ASCs). In general critics say the requirement is needless and prohibitively expensive. Supporters—looking to the history of clinic abuses—argue they are minimal requirements necessary to safeguard women’s health.

Judge Catharina Haynes

Judge Catharina Haynes

The case has been heard and reheard, decided and appealed, even reaching the Supreme Court in a preliminary way. (Everyone agrees the issue—or issues– will eventually be squarely in front of the High Court.)

Last August, Federal District Judge Lee Yeakel blocked the ASCs requirement. (Yeakel also lifted the requirement that abortionists have admitting privileges at a local hospital for two clinics in isolated locations, McAllen and El Paso.)

The state appealed, arguing as it did yesterday, that the law did not constitute an undue burden since at least 83% of the population would still live within 150 miles of an abortion clinic—and that abortion clinic proprietors could build more surgical centers if they chose. (In fact, that is what PPFA was already doing.)

In October the appeals court lifted Yeakel’s stay, saying the state could begin fully enforcing the law. This “caus[ed] all but eight abortion centers, none of them west of San Antonio, to close,” the New York Times’ Erik Eckholm reported.

Judge Edward Prado

Judge Edward Prado

“But then on Oct. 14, the Supreme Court reinstated the injunction against the law, allowing clinics to reopen pending the further consideration that started with Wednesday’s hearing” before the 5th Circuit.

Which brings us back to Wednesday’s hearing. Opponents were gratified by tough questions posed to the solicitor general, particularly by Judge Haynes—which, again, is what judges are supposed to do. Judge Haynes had participated in a previous case which upheld a provision of HB 2.

Supporters noted (as Eckholm wrote) that “the judges said that the clinics had failed to show that a ‘large fraction’ of abortion facilities would close and asked why the courts should not demand more limited changes in the law.” The Houston Chronicle’s account added that “Haynes also directed several pointed questions at the abortion providers challenging the law.”