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Appeals Judges Grill Lawyers Over Abortion Law

Alexa Ura
Texas Tribune

NEW ORLEANS — In a long line of tough questioning Wednesday over a new Texas abortion law, federal appeals judges here questioned whether part of a provision requiring abortion facilities to meet hospital-like standards should be struck down.

The possibility that the three-judge panel of the U.S. Fifth Circuit Court of Appeals would rule in favor of the abortion providers seemed slim before this week’s hearing, given that two of the judges had previously upheld some of the state’s abortion restrictions. But on Wednesday, the judges took turns grilling attorneys in taking a deeper dive into the provision.

The provision is part of House Bill 2, which the Texas Legislature passed during a special session in 2013. It requires facilities that perform abortions to meet the same standards as ambulatory surgical centers. This includes minimum sizes for rooms and doorways and additional infrastructure like pipelines for anesthesia. A decision from the Fifth Circuit is not expected for at least several weeks.

Judge Catharina Haynes, the most vocal of the three judges Wednesday, questioned the state’s argument that all of the hospital-like standards being imposed on abortion facilities would improve women’s safety.

“What about that improves the standard of care?” Haynes asked Jonathan Mitchell of the Texas solicitor general’s office, referencing requirements for larger rooms in abortion facilities that would force most abortion providers to retrofit their clinics. “Why can’t you have a sterile environment in a 3,000-square-foot building?”

Mitchell said the requirements are reasonable measures to “enhance accountability” of facilities performing abortions. The ambulatory surgical center provision is meant to create a “uniform rule” of standards to protect women, he added.

Stephanie Toti of the Center for Reproductive Rights, which brought forth the lawsuit on behalf of the abortion providers, argued that the provision would lead to the closure of most abortion clinics in the state and put more women at risk.

If the law is upheld, only a handful of Texas abortion clinics — all in major metropolitan areas — would remain open, leaving women west or south of San Antonio anywhere from 150 to 500 miles away from a Texas abortion facility, the providers’ attorneys have argued.

Haynes questioned whether this effect of the abortion law made it irrational to claim that its intended purpose was to improve the standard of care “if you have women driving these distances.”

But she also seemed to indicate that some aspects of the ambulatory surgical center provision, specifically those that do not involve the retrofitting of facilities, should be upheld.

“Wouldn’t you agree that there are at least some that are practical?” she asked Toti, who disagreed.

The judges also zeroed in on the effects of the abortion law on women living in West Texas. Aside from the challenge to the ambulatory surgical center provision, the lawsuit also asks for a reprieve for two clinics from a separate provision of the law that requires doctors who perform abortions to have admitting privileges at a hospital within 30 miles of an abortion clinic.

A separate three-judge panel, which included Haynes and Judge Jennifer Walker Elrod, upheldthe provision last year. But the providers’ attorneys argue that the two clinics in question, Whole Woman’s Health in McAllen and Reproductive Services in El Paso, shut down because of that provision. The poor, mostly minority women in these areas are disproportionately affected by the law, they argue.

On Wednesday, Elrod questioned whether a substantial amount of women in this area would face challenges in obtaining an abortion when they could travel to New Mexico for the procedure.

Toti said that the state’s argument that the abortion law is meant to improve patient safety is invalidated if they are going to rely on New Mexico as a nearby alternative because its abortion regulations are not as strict as in Texas.

“The state of Texas is essentially forcing abortion providers out of practice and shuttling these patients to New Mexico,” Toti said.

Haynes agreed, questioning whether the state was “undercutting” its own argument. “If these restrictions are so necessary, why send women across the border to New Mexico?” she said.

Mitchell responded that the state prefers for abortions to be performed at ambulatory surgical centers to ensure women’s safety, but he added that it would be unable to stop patients from going out of state.

Judge Edward C. Prado focused on whether long travel distances were enough to deem the law unconstitutional. He questioned what travel distance, if any, the state would consider an undue burden.

Mitchell said there was precedent that increasing travel distance by 100 miles was not an undue burden, but he added that the U.S. Supreme Court, which set the undue burden standard, has not provided specifics.

In late August, U.S. District Judge Lee Yeakel of Austin struck down the provision just days before it was set to go into effect. The state immediately appealed to the Fifth Circuit.

Elrod was on a separate three-judge panel that temporarily allowed the state to enforce the ambulatory surgical center provision as the case makes its way through the appeals process — a decision reversed by the U.S. Supreme Court.

During Wednesday’s hearing, the judges made note of the Supreme Court’s actions. Elrod questioned whether the panel should be concerned that the high court vacated its ruling that allowed the ambulatory surgical center provision to temporarily go into effect.

“It’s not precedent, but it’s still instructive,” Haynes added.

If the panel upholds the provision, abortion providers could request that the full 15-member court hear the case. But it’s more likely that abortion providers would attempt to take the matter to the U.S. Supreme Court rather than the 5th Circuit, which is seen as one of the nation’s most conservative federal appeals courts.

This story was produced in partnership with Kaiser Health News, an editorially independent program of the Henry J. Kaiser Family Foundation, a nonprofit, nonpartisan health policy research and communication organization not affiliated with Kaiser Permanente.