Three-judge panel hears arguments related to HB2 lawsuit

Attorneys argued Sept. 12 before the U.S. Court of Appeals 5th Circuit whether to fully implement a contested 2013 Texas law regulating abortion practices while a lawsuit against the legislation is on appeal. The decision of the three-judge panel will significantly impact the number of operating clinics statewide, reducing their number from about 20 to seven or eight if the judges rule to overturn a lower court’s injunction.

A ruling is expected in about a week according to pro-life advocates who have followed the saga of the hotly debated Texas House Bill 2 since its passage in June 2013. Texas Attorney General Greg Abbott asked for the emergency hearing after U.S. District Judge Lee Yeakel ruled Aug. 29 that two of the regulations in HB 2 created an “undue burden” for women seeking abortions, rendering the measures unconstitutional. Yeakel ordered an injunction prohibiting the enforcement of the provisions while the case, Whole Women’s Health vs. Leakey, is appealed.

Kyleen Wright, executive director of Texans for Life, and John Seago, legislative director for Texas Right to Life attended the hearing in New Orleans and were encouraged by the judges’ responses to oral argument.

They would not speculate how the Court would rule on the emergency release from Yeakel’s current injunction prohibiting enforcement of the law, but they were optimistic Friday’s proceedings shed light on how the court will eventually rule on HB 2 when it hears the full case later this fall.

“It was a lively hearing that went longer than expected because of all the questions,” Seago told the TEXAN in a telephone interview.

Wright said Judge Jennifer W. Elrod “obviously did her homework,” asking detailed questions of the plaintiff’s attorneys regarding conflicting information presented in the current case and a similar case brought against HB 2 last year by Planned Parenthood.

At last year’s hearing, Elrod sat on the all-female, three-judge panel that unanimously ruled to overturn Yeakel’s injunction against two of the HB 2 provisions.

Plaintiffs in this case also joined last year’s suit. They represent Texas abortion clinic owners and doctors. Planned Parenthood chose not to join the current lawsuit, which claims HB 2 regulations requiring abortion clinic doctors receive admitting privileges at a nearby hospital and clinics upgrade their facilities to meet ambulatory service center (ASC) standards would ultimately restrict women’s constitutionally guaranteed access to abortion.

Seago said the questions and their tone revealed Elrod and Judge Stephen Higginson, a President Barack Obama appointee, had opposing views on the issue. The third judge, Jerry E. Smith asked the fewest questions, but previous rulings suggest he would uphold HB 2 on appeal.

Wright and Seago noted the judges questioned the plaintiff’s statistical information regarding clinic closures and their subsequent impact on women seeking abortions. In his ruling, they said Yeakel failed to prove the “large fraction test” requiring plaintiffs prove that a large percentage of women of child-bearing years would be unduly burdened by clinic closures.

Wright said the abortion clinic attorneys were hard-pressed to give specific numbers and, instead, relied on anecdotal information. In last year’s case Planned Parenthood attorneys claimed implementation of HB 2 would hinder 20,000 women from getting abortions.

But under questioning today from Elrod, that number was proven unreliable and based on presumptive information that has since be proven false.

“It was more rhetoric than accurate,” Seago said.

Although the impact of clinic closures were the salient point leading to arguments of “undue burden,” plaintiffs’ attorneys were elusive when asked how many abortion clinics will open in a post-HB 2 Texas.

Elrod pressed the issue because Whole Women’s Health, an abortion provider with clinics in major Texas cities, announced it would open a clinic in New Mexico just across the border from an El Paso clinic due to close if HB 2 is upheld.

The El Paso clinic and one in the Rio Grande Valley featured prominently in Yeakel’s Aug. 29 decision.

He concluded the State’s ASC regulation was unconstitutional on two fronts. The ASC requirements demanded clinics be built or remodeled to accommodate medical systems used in out-patient clinics. New abortion facilities included those regulations in their designs. But existing facilities said cost or structural issues proved overwhelming and chose to shutter their clinics.

Yeakel argued the ASC systems were not necessary when performing non-surgical, or medication-induced, abortions and were, therefore, arbitrary. But pro-life advocates argued abortion clinics that provide medication-induced abortions also provide surgical abortions, hence the need for the higher standards of practice as outlined in HB 2.

In ordering the injunction, Yeakel argued the ASC requirements and the admitting privileges mandate created an untenable combination for abortion clinics. He specifically cited the plight of two clinics, one in the Rio Grande Valley and one in El Paso.

The admitting privileges provision went into effect last year, requiring abortion clinic physicians receive admitting privileges at a hospital within 30 miles of the abortion clinic where they work. According to statistics cited in Yeakel’s ruling, almost half of the 40 Texas abortion clinics closed because their doctors could not get the admitting privileges.

Only the El Paso clinic remained open. But the Sept. 1 implementation of the ASC requirements would have forced the closing of that clinic, the lone Texas clinic west of the I-35 corridor.

If the regulation requiring clinics to meet ambulatory service center standards had gone into effect Sept. 1 the number of clinics would have dropped to seven or eight located only in Houston, San Antonio, Austin, Dallas and Ft. Worth according to plaintiff’s attorneys.

 “The court concludes the act’s ambulatory-surgical-center requirement, combined with the already in-effect admitting-privileges requirement, creates a brutally effective system of abortion regulation that reduces access to abortion clinics thereby creating a statewide burden for substantial numbers of Texas women,” Yeakel wrote in his decision.