Appeals Court Hears From Both Sides on Enforcement of Texas Abortion Law

Whole Woman's Health in Austin.

After lawyers presented arguments Friday regarding the enforcement of major provisions of Texas’ sweeping abortion law that have already led to the closure of more than half the state’s abortion clinics, providers await an answer from a three-judge panel of the 5th Circuit Court of Appeals that will have a dramatic impact on abortion access.

On Aug. 29, U.S. District Judge Lee Yeakel in Austin blocked a major piece of the law from taking effect on Sept. 1: the requirement that abortion facilities statewide meet expensive and medically unnecessary ambulatory surgical center standards. That requirement, along with a second that requires physicians performing the procedure obtain admitting privileges are nearby hospitals, would’ve resulted in Texas losing all but seven or eight abortion clinics.

Attorney General Greg Abbott filed an appeal and an emergency request asking that Texas immediately enforce the law pending the appeal, citing “irreparable harm” to the state, but because the AG’s office filed too late in the game (at 11:59 p.m. on Aug. 31) the court denied the emergency request and instead scheduled Friday’s hearing. Federal Judge Jerry Smith interrupted state Solicitor General Jonathan Mitchell to address the last-minute filing.

“I’m a little perplexed about the way that was handled by the state, I think it really goes to the seriousness of the state’s claim of irreparable harm,” said Smith, adding that court staff waited from Friday night when Yeakel issued his ruling through Saturday and Sunday of Labor Day weekend for the state’s motion of appeal and emergency stay request.

On behalf of the state, Mitchell argued that a “large fraction” of women would not be affected by the law should be it be fully enforced and worked to poke holes in expert testimony brought forth by lawyers representing a group of independent abortion providers during the early August trial, including data analysis by Dan Grossman with Ibis Reproductive Health showing that close to 1 million reproductive-age women in Texas would live 150 miles or more from an abortion facility under HB 2.

In her presentation asking that the court deny Abbott’s request, plaintiff lawyer Stephanie Toti with the Center for Reproductive Rights reiterated that should the law take effect and all but seven or eight abortion clinics close, those remaining facilities would not be able to handle the patient capacity. Toti also argued that the harm caused to the state by not immediately enforcing the law pending the appeal is “minimal,” and it’s “undisputed” that doing so would lead to closure of 13 abortion clinics overnight, she said.

Questions from the judges pushed the hearing some 40 minutes past the one hour it was originally scheduled for. Judges Smith and Jennifer Elrod, who were both appointed by Republican presidents and have ruled to uphold other Texas abortion laws, threw tougher questions at Toti, while Obama-appointee Judge Stephen Higginson, who most recently ruled against a similar hospital admitting privileges requirement in a Mississippi case that would’ve closed the state’s only abortion clinic, kept it shorter throughout.

Elrod, the most outspoken of all three, suggested that the financial and transportation burdens plaintiffs contend women will face is “theoretical” and questioned how many women would face an undue burden because of the law.

“I still didn’t hear that there was evidence in the record, and maybe the answer is there’s just not any, that a large fraction of women would be denied services at the clinics that would be overburdened?” Elrod asked.

In her response, Toti reemphasized that some women will have to travel great distances to get an abortion because large swathes of the state would be without a provider.

“...a significant number of women would be unable to reach those clinics because of the distances they would have to travel,” Toti said. “The nearest clinic to the Rio Grande Valley is now in San Antonio, that’s more than 235 miles from the McAllen clinic that was previously operating there. And for the women of El Paso County, the nearest Texas abortion provider is in San Antonio, which is over 550 miles away.”

The state argues that women in El Paso can go to New Mexico abortion clinics for the procedure.

It’s unclear when the court will issue an opinion, but in the mean time, listen to the full audio here.

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