Texas Abortion Law Hit the Fifth Circuit (and the Fifth Hit Back)

The U.S. Fifth Circuit Court of Appeals heard oral arguments for House Bill 2, the controversial Texas abortion law, on Wednesday. Two of the three judges on the panel have already ruled in favor of the law. From that standpoint, the hearing went about as expected.

Specifically, the Fifth heard from both abortion providers, represented by Center for Reproductive Health, and the State of Texas about the constitutionality of House Bill 2. The law, memorably slammed through the Texas legislature in 2013, imposes many requirements on abortion clinics. The points in contention before the Fifth are whether clinics should be required to be become certified ambulatory surgical centers (the requirements are both detailed and expensive) and whether clinic doctors can be required to obtain admitting privileges with local hospitals (tricky because hospitals have been reluctant to do so).

Last year, District Judge Lee Yeakel ruled that the law was unconstitutional because it would place an undue burden on Texas women. The state has been fighting ever since to prove that the law -- which, if allowed to go into effect, will shutter most of the abortion clinics in Texas -- is in fact totally constitutional.

The case was heard by three judges appointed by George W. Bush. Judges Catharina Haynes and Jennifer Elrod were both swinging for the fences throughout the hour-long hearing, intently questioning both the State of Texas and the abortion providers.

Haynes repeatedly asked questions about the potential risk of women experiencing "bleeding events" while driving back across the state after an abortion. Elrod focused on the more legalese side of things. Both Haynes and Elrod have already previously ruled in favor of HB2. Judge Edward Prado, another W. appointee, made a couple of jokes to start things off and asked a few questions, but Elrod and Haynes did most of the talking.

Haynes didn't come across as impressed when Texas Solicitor General Jonathan Mitchell claimed that experts say the ambulatory surgical center-type requirements are recommended by experts because it makes the clinics safer. "You can find an expert to say anything," she said, musing that if the state legislature required every clinic to have marble floors installed, state officials would be able to find an "expert" to back it up.

Meanwhile Haynes questioned CRR attorney Stephanie Toti about the broadness of Yeakel's district court ruling last year. (He threw the whole thing out last year which is how the case ended up before the Fifth in the first place.) Toti carefully disagreed.

"We're just a lower, we're an inferior court, we're not here to make abortion policy for America," Elrod told Toti. Of course, when it comes down to it the Fifth is going to be making a decision that could effect increasingly restrictive abortion laws in multiple states, but to the credit of the entire court and audience, nobody actually laughed out loud when Elrod made that claim.

The questions bounced all over the place, digging into why an El Paso abortion clinic doctor didn't sue a hospital when she was denied admitting privileges before bouncing off to inquiries about legal precedent -- so you know, it was like oral arguments at any other circuit court. The main surprise about the oral arguments was that Elrod and Haynes seemed to be lobbing their questions at both Toti and Mitchell equally.

Haynes and Elrod spent the last minutes of the hearing trying to work out how their opinions compare to those issued by other circuit courts, and both seemed to think the issue will hit the Supreme Court sooner rather than later, mentioning writing the opinion would be like writing to hit a moving target. The court can take weeks to issue a decision.

However, once the decision is made either side can and most likely will appeal to the U.S. Supreme Court.


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