January 7, 2014 — The 5th U.S. Circuit Court of Appeals on Monday heard opening arguments over the constitutionality of a Texas law (HB 2) that requires abortion providers to have admitting privileges at nearby hospitals, the Texas Tribune reports (Aaronson, Texas Tribune, 1/7).
The appeals court in October ruled that the law's admitting privileges requirement and another provision requiring that physicians be present when administering medication abortion could take effect while the case is appealed. The court scheduled an expedited hearing for this month, but several clinics in the state had to stop offering abortion services immediately after the law took effect.
In November, the Supreme Court declined an emergency application filed by a Planned Parenthood affiliate and several other women's health care providers to block the law (Women's Health Policy Report, 11/20/13).
At Monday's hearing, both sides were given 20 minutes to make oral arguments before the three-judge panel.
An attorney for the Center of Reproductive Rights argued that the provision is unconstitutional because some abortion facilities are barred from performing the procedure and women in certain areas of the state -- such as South Texas and the Panhandle -- must travel long distances to access abortion care (Texas Tribune, 1/7).
"The law has no rational relationship to the states' asserted interest in maternal health," CRR attorney Janet Crepps said, adding, "Before, there were abortion providers in the Rio Grande Valley. Now there are none" (Lawton/Cronin Fisk, Bloomberg Businessweek, 1/6). She said women "are now forced to travel 150 [miles] or a 300-mile-round-trip" for abortion care (Kunzelman, AP/Miami Herald, 1/6).
Texas Solicitor General Jonathan Mitchell argued that the law did not create an undue burden on women, noting that several clinics -- including some in Austin and San Antonio -- have been able to resume providing abortion services. "What actually has happened is that clinics Planned Parenthood said would close are now open," he said (Kilday Hart, "Texas Politics," Houston Chronicle, 1/6).
Mitchell added that the plaintiffs could not have known how the requirement would affect clinics unless it took effect (AP/Miami Herald, 1/6).
Judges Seem To Favor State, Observers Note
The three judges seemed to favor the state's arguments, according to observers who followed the hearing, the Tribune reports. The Tribune notes that one of the judges authored a 2012 opinion upholding a Texas antiabortion-rights law, while the other two supported allowing the admitting privileges law to take effect in a previous ruling (Texas Tribune, 1/7).
Judge Edith Jones questioned Crepps' assertion that traveling a long distance to access abortion services would be a burden for women, asking, "Do you know how long that takes in Texas at 75 miles an hour? ... This is a peculiarly flat and not congested highway."
Jones and Judge Catharina Haynes echoed Mitchell's arguments about how the plaintiffs could not yet determine how the law would affect clinic closures. "Predicting the future is hard," Haynes said, adding, "Addressing the past is far more straightforward" (AP/Miami Herald, 1/6).