January 8, 2015 — A three-judge panel of the 5th U.S. Circuit Court of Appeals on Wednesday heard arguments over the constitutionality of parts of a Texas antiabortion-rights law (HB 2) that would close more than 50% of the state's remaining abortion clinics if implemented, the New York Times reports (Eckholm, New York Times, 1/7).
According to the Texas Tribune, the case centers on a requirement that abortion clinics in the state meet the same building standards as ambulatory surgical centers and whether abortion facilities in El Paso and McAllen should be exempt from a separate provision that requires abortion providers to have admitting privileges at nearby hospitals (Ura, Texas Tribune, 1/7).
In October 2014, the Supreme Court reversed a ruling by the 5th Circuit that had lifted a hold against the ambulatory surgical center provision. Specifically, the high court's decision placed a hold on the ambulatory surgical centers provision and exempted abortion facilities in El Paso and McAllen from a provision that requires abortion providers to have admitting privileges at nearby hospitals (Women's Health Policy Report, 10/15/14).
Plaintiffs' Oral Arguments
Stephanie Toti -- an attorney for the Center for Reproductive Rights, which brought the suit on behalf of abortion providers in the state -- said during oral arguments that the ambulatory surgical centers provision would result in the closure of most of the state's clinics (Texas Tribune, 1/7). She added that the regulations had "no rational basis" and would "actually increase the risks that women face" (New York Times, 1/7).
In addition, Toti argued that the law's provisions would result in an undue burden for women in the Rio Grande Valley and West Texas. She said, "If a woman in El Paso has to travel 500 miles to get an abortion, that's an undue burden" (Feibel, Houston Public Media/Kaiser Health News, 1/8).
Judges Jennifer Elrod and Catharina Haynes expressed concern that the driving time could increase the safety risk (New York Times, 1/7). However, Haynes also questioned Toti about whether women's ability to drive across the border to New Mexico for an abortion undercut the plaintiff's argument. She said, "We know that nobody is going to drive 500 miles. They're going to go to New Mexico. You're asking us to ignore that" (Houston Public Media/Kaiser Health News, 1/8).
Toti said the likelihood of women going to New Mexico to obtain abortions actually undercuts the state's arguments, as New Mexico's abortion clinic regulations are not as strict as those of Texas clinics. She said, "The state of Texas is essentially forcing abortion providers out of practice and shuttling these patients to New Mexico" (Texas Tribune, 1/7).
Meanwhile, Haynes and Elrod also raised the question of whether a lower court judge's ruling striking down the entire ambulatory surgical centers provision was too broad. Haynes said, "It seems to me, that when you're going to have a remedy of invalidating a law, statewide, on its face, you have to at least go through and say at least the soap dispensers are OK" (McGill, AP/Miami Herald, 1/7).
Haynes asked Toti if she would "agree that there are at least some [requirements of the ambulatory surgical centers provision] that are practical," although Toti said that she did not agree that was the case.
State's Oral Arguments
Meanwhile, Texas Solicitor General Jonathan Mitchell defended the ambulatory surgical center provision under questioning from the judges.
Haynes asked Mitchell, "If these restrictions are so necessary, why send women across the border to New Mexico?" Mitchell said that while the state prefers for women seeking abortions to obtain them at facilities with the same standards as ambulatory surgical centers, it could not prevent women from crossing state lines (Texas Tribune, 1/7). He added that the care provided by New Mexico clinics was not "sub-standard," but rather "care that is less than optimal" (Houston Public Media/Kaiser Health News, 1/8).
Separately, Judge Edward Prado asked Mitchell if the state would consider any travel distance needed for a woman to obtain an abortion as a result of HB 2 to constitute an undue burden. Mitchell said that while there was precedent that adding an additional 100 miles in travel time did not constitute an undue burden, the Supreme Court had been unclear about the specifics of the undue burden test (Texas Tribune, 1/7). He said, "The undue burden has to require something more than driving distance. People will have to travel to get abortions in Texas, but that's always the case" (Houston Public Media/Kaiser Health News, 1/8).
Haynes also questioned Mitchell about the validity of Texas' argument that the ambulatory surgical center requirements would enhance women's safety (Texas Tribune, 1/7). In particular, Haynes said she was concerned about the requirement that abortion facilities be located in at least a 7,000 square-foot building. She asked Mitchell, "Why can't you have a sterile environment in a 3,000-foot (facility)?" (Kaminsky, Reuters, 1/7).
Mitchell said the requirements were reasonable and needed to "enhance accountability" of abortion facilities and put in place a "uniform rule" of regulations to protect women's health (Texas Tribune, 1/7).
Judges Could Remand Case
The judges' line of questioning suggested that the 5th Circuit panel might remand the case to the state district court that blocked the ambulatory surgical center provision and ask the court to "parse the rules more finely," instead of invaliding the entire law, the Times reports.
According to the Times, the 5th Circuit is known as a conservative court, and Elrod and Haynes have both previously issued rulings upholding parts of HB 2 (New York Times, 1/7). However, the three judges "sharply questioned" both the plaintiffs and the state during oral arguments, Houston Public Media/Kaiser Health News reports (Houston Public Media/Kaiser Health News, 1/8). However, if the panel upholds the provisions, the plaintiffs could request a hearing by the full 15-member 5th Circuit or appeal the case to the Supreme Court (Texas Tribune, 1/7). According to the Times, the case is one of several ongoing cases involving abortion restrictions that could eventually be considered by the high court (New York Times, 1/7).
There was not an indication of when the 5th Circuit would issue its ruling on the case, according to the AP/Herald (AP/Miami Herald, 1/7).
Amy Hagstrom Miller, CEO of Whole Woman's Health, said, "I'm actually quite encouraged by the line of questioning." She added, "I feel the judges really understand the undue burden as applied to women in El Paso, and they seem genuinely concerned about those women's access to safe abortion as protected by the constitution" (Houston Public Media/Kaiser Health News, 1/8).