Fifth Circuit Judges Hear Arguments on Texas’ Omnibus Anti-Abortion Law

Judges appeared skeptical of abortion providers' claims that HB 2 constitutes an undue burden on tens of thousands of Texans who experts say have lost access to legal abortion.

Judges appeared skeptical of abortion providers' claims that HB 2 constitutes an undue burden on tens of thousands of Texans who experts say have lost access to legal abortion. Andrea Grimes / RH Reality Check

Texas’ omnibus anti-abortion law made a stop Monday in a New Orleans federal appeals court, where a three-judge panel heard arguments on whether the state can require abortion-providing doctors to secure admitting privileges at local hospitals and severely restrict the prescription of medication abortions. The law is expected, eventually, to make its way to the Supreme Court.

Onlookers filled the wood-paneled courtroom for the hearing, wherein Fifth Circuit Court of Appeals judges Catharina Haynes, Jennifer Elrod, and Edith Jones questioned attorneys representing the State of Texas and, on the plaintiff’s side, the Center for Reproductive Rights (CRR), which has filed suit against the state along with the American Civil Liberties Union of Texas, Planned Parenthood, and a group of Texas abortion providers. Two of the judges, Haynes and Elrod, have already overturned a lower court’s injunction against parts of the law, allowing HB 2 to go into effect in November 2013.

“I think given that two of these judges were on the stay opinion, and let the admitting privileges requirement go into effect, we definitely have our work cut out for us,” CRR senior counsel Janet Crepps told Rewire after the hearing. Because arguments have already been made at length in briefs filed previously with the court, proceedings lasted about an hour, typical of federal appeals court hearings.

Plaintiffs argue that abortion providers, particularly in conservative areas of the state, will have great difficulty obtaining admitting privileges at hospitals within 30 miles of where they perform abortions, if they are able to at all. They also argue that the medication abortion restrictions, which require doctors to prescribe medication abortion pills according to 13-year-old Food and Drug Administration (FDA) protocols, ask doctors to ignore evidence-based improvements in the regimen, developed since the FDA labels were written.

In October, federal judge Lee Yeakel ruled that the admitting privileges provision did constitute an undue burden on abortion in Texas, but his injunction against the law was swiftly overruled by the Fifth Circuit, which stayed his injunction against the implementation of the law.

During the proceedings Monday morning, judges questioned the veracity of the work of the Texas Policy Evaluation Project (TxPEP), a University of Texas group studying the impact of abortion regulations in the state, which found that about 22,000 Texans will be denied access to abortions as a result of the admitting privileges mandate. State attorneys argued, however, that the court need not believe TxPEP’s findings in order to declare HB 2 constitutional, and that past precedent allows states to regulate abortion without regard to whether regulations are medically necessary.

Texas Solicitor General Jonathan Mitchell, arguing on behalf of the state, called TxPEP’s findings “untenable assumptions that have already been proven false,” and noted that some abortion providers have been able to secure admitting privileges. Mitchell said that the case is about “whether the obstacle [to abortion access] is proposed is substantial.”

Judge Edith Jones appeared to agree, noting that legal precedent decrees that “states may regulate the practice of medicine. This is the regulation of the practice of medicine.”

While four abortion providers in Dallas, Fort Worth, and Austin have been able to secure admitting privileges since November, both clinics in the state’s vast and rural Rio Grande Valley remain closed, and providers say demand has increased significantly at clinics that have remained open as many abortion-seeking Texans now travel hundreds of miles round-trip to urban areas for safe, legal procedures. Texans seeking abortions in the Valley face a ten-hour round-trip drive to San Antonio or a six-hour round-trip drive to Corpus Christi to obtain the procedure legally.

But the judges appeared largely unconcerned about HB 2’s effect on Valley residents, who are among the poorest in the country. Judge Edith Jones, who in 2012 upheld the state’s mandatory pre-abortion sonogram law and repeatedly referred to Texans who seek abortions as “mothers,” said during the hearing that the highway connecting the Rio Grande Valley to San Antonio is a “peculiarly flat and not congested highway.” And while judge Catharina Haynes conceded that while “HB 2 may be a problem in the Rio Grande Valley,” that didn’t necessarily apply to other areas of the state or to the wider constitutionality of the law.

Haynes also questioned the American College of Obstetricians and Gynecologists’ (ACOG) statement calling HB 2 medically unnecessary and burdensome, asking why, if ACOG’s group of thousands of OB-GYNs in Texas felt abortion was an essential procedure, more of them didn’t perform abortions themselves. If more of them didn’t sign on to perform the procedure, thereby reducing access to abortion, she said, “that is not a creature of HB 2’s making.”

CRR counsel Crepps noted during the hearing that many doctors are “rightfully afraid of violence and harassment that has been visited on doctors who provide abortion,” citing the assassination of Dr. George Tiller as an example. Jones replied, unconvinced, “And what did Dr. Gosnell do?” referencing the Philadelphia abortion provider convicted of first-degree murder in May 2013.

Judge Jones also took the opportunity to question the reliability of the New York Times‘ reporting on HB 2, saying that the newspaper had printed “patently false” information when it reported that about a third of Texas abortion providers had stopped providing procedures. In fact, at least 12 of about 30 existing providers have been forced to cease providing the procedures, even accounting for the four that have reopened after doctors obtained privileges.

Despite the tough questioning, Crepps told Rewire after the hearing that judges were “asking the right questions,” and said she’s “hoping that they are asking them because they truly have concerns about them and really want to know what the answer is, but you never know.”

Crepps said that she anticipates the court will issue an official ruling in a matter of weeks, at which point the parties will have the option to appeal to the Supreme Court.