Federal judges asked tough questions Friday morning during a lengthier-than-expected appeals court hearing concerning the enforcement of Texas’ omnibus anti-abortion law, HB 2. The law in part mandates that abortion facilities operate as hospital-like ambulatory surgical centers and requires abortion-providing doctors to obtain hospital admitting privileges.
An Austin judge had blocked the law just before Labor Day, prompting the State of Texas to appeal to the Firth Circuit court in New Orleans to allow it to begin enforcing HB 2.
“We basically tried to focus on the point that access for women in Texas is the most important thing right now and maintaining the status quo and allowing clinics that can’t meet ASC requirements to stay open is essential,” an attorney for the Center for Reproductive Rights (CRR), which is representing Texas abortion providers in the case, told Rewire after the hearing.
“If the state is granted its motion and starts enforcing the law, there will be only at most seven or eight clinics left in Texas,” lead attorney Esha Bhandari said.
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Before HB 2 passed, Texas had 41 licensed abortion providers; just eight of those licensed providers would currently be able to operate as ambulatory surgical centers, and all are located in major metropolitan areas in the northeast part of the state, leaving South Texas and West Texas devoid of legal abortion facilities.
This morning’s three-judge panel—one Obama appointee and two judges appointed by Ronald Reagan and George W. Bush—largely appeared to split down predictable party lines in their respective lines of questioning.
Judge Jerry Smith, the Reagan appointee, opened the hearing by questioning the State of Texas’ delay in filing its federal appeal, which came near midnight two days after the original federal court ruling. Smith said he was “perplexed” about the way the state handled its appeal.
“All of the judges and our staffs, as well as the staff here in New Orleans, were on alert throughout the weekend thinking that you felt strongly enough about the harm element that you would file a motion for stay,” said Smith, interrupting Texas deputy attorney general Jonathan Mitchell, who appeared on the state’s behalf.
Mitchell responded that because of the wide scope of Western District Judge Lee Yeakel’s ruling, the attorney general’s office was unable to file more quickly than it did.
But the toughest lines of questioning came from Bush appointee Judge Jennifer Elrod, who appeared unswayed by CRR attorney Stephanie Toti’s argument that HB 2 should remain blocked while its appeal continues in the federal court system.
Elrod peppered Toti with questions about constitutional precedent, and focused particularly on whether Texas abortion providers could show that HB 2 would constitute an undue burden for a “large fraction” of Texans.
Elrod also questioned the reliability and relevance of research produced by the University of Texas’ Texas Policy Evaluation Project, which found that more than a million Texans will live farther than 100 miles from a legal abortion provider if HB 2 goes into effect.
State’s attorney Jonathan Mitchell largely stayed away from questions of fact-finding and the trial record concerning whether low-income Texans could travel hundreds of miles round-trip for legal abortion care, arguing instead that “this is a pure legal question for the court to decide,” and that past legal precedent should cause the Fifth Circuit to immediately allow the state to begin enforcing HB 2.
It is unknown when the Fifth Circuit will rule on the current appeal, though the court has in the past upheld Texas abortion laws and Texas laws allowing the state to ban Planned Parenthood from providing state-funded contraception and cancer screenings.