The Fifth Circuit Is Set to Hear the Texas Abortion Law Case

The Fifth Circuit Is Set to Hear the Texas Abortion Law Case
Photo by Francisco Montes

After the holiday breather the U.S. Fifth Circuit Court of Appeals is getting back into the ring this month to grapple with Texas abortion law once again.

Specifically, the Fifth will be wading into the constitutionality of House Bill 2. Last year, District Judge Lee Yeakel ruled that the law was unconstitutional and 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.

For those with short memories, HB 2 was slammed through the Texas legislature back in 2013. (Former gubernatorial candidate and state Sen. Wendy Davis rose to national prominence when she filibustered the first attempt to get the law passed in the Lege.) The law required all abortion clinics to become certified as ambulatory surgical centers and required all abortion clinic doctors to obtain admitting privileges with a nearby hospital, meaning this would basically close all but a handful of the clinics in the state.

And HB2 isn't the only law of its kind out there. Not by a long shot. Since the Republicans made a sweep of the 2010 midterms, states have passed about 200 abortion regulations, as noted by NPR.

While the states can't actually outlaw abortions -- in Planned Parenthood v. Casey the U.S. Supreme Court decided, albeit in the vaguest way possible, that abortion is a constitutional right and the state cannot cut off access to abortions and create an "undue burden" for women -- state lawmakers can certainly regulate abortion clinics. Supporters of such restrictions have argued that that the strict regulations, along with the required sonograms and waiting periods, are focused on protecting women's health and not meant to rid states of abortion providers.

Of course, the "regulations" have caused that exact result. By the end of 2014, there was only one clinic left open in the entire state of Mississippi, Tennessee had passed a constitutional ban on abortions that is going to make imposing strict regulations even easier for state lawmakers and right here in Texas the initial Fifth Circuit rulings on HB2 managed to close more than half of the clinics in the state. Considering that Republicans had more gains in the elections this fall, anti-abortion proponents will probably have more good news moving into 2015.

Meanwhile, appeals courts across the country have been making conflicting decisions on abortions cases, with some judges allowing laws to stand while others strike similar laws down. The split has even shown up on the Fifth Circuit after a different panel of judges on the same court ruled against Mississippi, allowing the last clinic in the state, located in Jackson, to stay open.

"There are great swaths of the state of Texas where there is virtually no access to full reproductive health care," Cecile Richards, president of the Planned Parenthood Federation of America told NPR. "What we're trying to avoid, though, is getting to a place in this country -- which unfortunately we more and more are -- where it's very, very different depending on which state you live in."

So far the notoriously conservative Fifth has been leaning on the side of the state when it comes to HB2. The Fifth was all for allowing HB2 to go into full effect last fall, a decision that was ultimately slapped down when the U.S. Supreme Court stepped in and blocked the ruling in October.

Then the Supreme Court blocked an Arizona law aimed at limiting the use of abortion pills (specifically the court declined to take up the case on the Ninth Circuit's injunction of the law). All of this indicates that after more than 20 years, the Supremes might be taking a real interest in the big abortion question.

The interest of the Supremes, along with the fact that similar laws are knocking through the court system across the country with differing results, indicates that the Supreme Court may have to take up the issue sooner rather than later. But either way, the Fifth is hearing oral arguments for the case on Wednesday and the panel of judges selected for the case isn't encouraging for those against HB2.

The Fifth selects panels of judges at random, but the state probably couldn't have done better if Texas officials had been allowed to do the picking themselves. The case will be heard by Judges Jennifer Walker Elrod, Catharine Haynes and Edward Prado. All three federal judges slated to hear the case are President George W. Bush appointees who have already shown plenty of support for HB2. Elrod and Haynes voted in 2014 to uphold the abortion law, so the odds are good their opinions haven't changed.

Elrod even wrote the opinion on the decision the Fifth issued back in October. (The opinion would have allowed the full law to go into effect if the Supremes hadn't stepped in at the last minute.) She dismissed the argument that most Texas women will be 150 miles from the nearest abortion clinic. "Even assuming, arguendo, that 150 miles is the relevant cut-off, this is nowhere near a 'large fraction,'" she wrote.

Basically Elrod and the Fifth entirely bought that 150 miles was not placing an undue burden on women who wanted abortions. Obviously, according to this approach, any woman who wants an abortion badly enough will figure out how to get herself to the clinic, find someplace to stay during the legally-mandated waiting period and then pay for the actual abortion. Those who can't finagle that obviously don't want it enough. Or something.

So basically, unless the Supremes do decide to take up the case, the odds are pretty high that most of the abortion clinics in the state will close after the Fifth issues its ruling on the matter.


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