A federal judge once again advised counsel to keep their arguments focused on legal reasoning, rather than emotional pleas, on the last day of arguments in Whole Woman’s Health v. Lakey, the latest challenge to a Texas’ omnibus anti-abortion law expected to shutter all but seven existing abortion providers in the state come September 1, barring judicial intervention.
Judge Lee Yeakel pushed lawyers both for the plaintiffs—a group of independent Texas abortion providers from across the state who say they have been forced to close clinic doors in the wake of HB 2‘s passage—and the State of Texas, which is defending the law, to answer the key question posed in practically every abortion case since Roe v. Wade: “Exactly what is an undue burden?”
Both sides, predictably, answered that decades-old question very differently, though lines of questioning from the judge seemed to indicate that he might be inclined to agree with plaintiffs’ arguments that the law would place substantial obstacles between Texans and legal abortion care. Judge Yeakel also said he found it “disturbing” that the state had attempted to “hide” its use of an anti-choice psychoanalyst from North Carolina who assisted the state’s experts in drafting testimony.
Jonathan Mitchell, a deputy attorney general for the State of Texas, argued that because a computer analyst working for the Texas attorney general’s office had estimated that about 90 percent of women of reproductive age in Texas would live within about 150 miles of an abortion provider should HB 2 go into full effect, the law would place no undue burden on abortion-seeking Texans. A “large fraction” of Texans, he argued, would not be faced with a substantial obstacle to legal abortion care.
But Stephanie Toti of the Center for Reproductive Rights, arguing for the plaintiffs, said that HB 2 “essentially amounts to a $3 million tax on the performance of abortions in the state,” referencing estimates given to Texas abortion providers regarding the costs to upgrade to, or build entirely, hospital-like abortion-providing ambulatory surgical centers required under HB 2. Because only a handful of existing, urban abortion providers could comply with the law, Toti argued, HB 2 would have the effect of severely limiting abortion access for anyone who could not make an overnight trip to a large city to access legal abortion care.
Deputy AG Mitchell also argued that whatever evidence—insubstantial or even non-existent in the state’s view—the plaintiffs may have shown that HB 2 would be difficult to comply with for abortion providers, or would deter some Texans from accessing legal abortion care, the plaintiffs had not met the burden of proof required by the Fifth Circuit Court of Appeals. HB 2, argued Mitchell, “fits comfortably” within the “safe harbors” afforded abortion regulations by the Fifth Circuit, and noted that the plaintiffs had not brought to the stand any individual woman who had been unable to access a legal abortion as a result of HB 2.
Parts of HB 2 have already gone into effect and are unchallenged in this court case: the ban on abortion after 20 weeks and the severe restriction of medication abortions. In this suit, the plaintiffs challenge HB 2’s requirement that abortion providers obtain admitting privileges at local hospitals—specifically as it applies to doctors in the Rio Grande Valley and El Paso—and that all abortion facilities operate as ambulatory surgical centers.
Judge Yeakel, who interrupted counsel a number of times to push them to elaborate on their arguments and question them on recent Fifth Circuit rulings in a previous Texas lawsuit and on an admitting privileges suit in Mississippi, mused in court as to whether abortion, as a medical procedure, was being uniquely targeted by state lawmakers, and whether a day-long drive or overnight stay would be acceptable burdens for accessing any other kind of medical care.
“If you had a sprained ankle, would we stand for that?” asked Yeakel, questioning Toti. “Would we stand for that if you needed an appendectomy? Is there any other procedure where we would stand for an entire day to have a minor procedure done?”
Yeakel also peppered both sides with constitutional questions related to the 14th amendment, which grants all Americans equal protection under the law, and asked whether the large number of Texans affected by HB 2, even if it was not a “large fraction” of the Texas population, should be taken into account.
He also challenged the state’s assertion that, per the Fifth Circuit Court of Appeals, a distance of under 150 miles from a Texan’s home to an abortion clinic would not constitute an undue burden and wondered why HB 2’s increased travel time requirements, and related increased costs of abortion care, would only need to burden a small population of low-income Texans living in the Rio Grande Valley and El Paso.
“If a rich woman who drives a Mercedes, and drives it fast, wants to visit an abortion clinic, why is [HB 2] not an undue burden for her?” asked Yeakel. He later added that he has “a problem with believing it’s reasonable to require anyone to travel 150 miles for medical care when they could get medical care closer.
Yeakel also questioned the extent to which anti-choice North Carolina psychoanalyst Vincent Rue had helped the state’s experts craft their testimonies, and said he found it “very disturbing” that the state had attempted to “hide” Rue’s involvement under the auspices of attorney-client privilege.
Wednesday’s closing arguments came after four days of testimony the previous week, wherein Texas abortion providers said they’d been forced to close clinics after their doctors were unable to obtain admitting privileges in the Rio Grande Valley and El Paso, and that they would be unable to afford the million-dollar or more costs involved in building abortion-providing ambulatory surgical centers (ASCs). Experts for the state countered that ASC building costs had been overblown, and that abortion as a procedure is more dangerous than is reported in mainstream science publications, necessitating the ASC and admitting privileges mandates.
Judge Yeakel is expected to issue a written opinion before HB 2’s ambulatory surgical center provision goes into effect on September 1. Legal experts told Rewire that whichever side loses this round of federal hearings is almost certain to appeal it to the Fifth Circuit Court of Appeals in New Orleans, and that the case could eventually make its way all the way to the Supreme Court.