Court of Appeals hears arguments on Texas abortion regulations bill

NEW ORLEANS — In what could be a precedent-setting case, the U.S. Court of Appeals for the 5th Circuit heard arguments in Whole Woman’s Health vs. Lakey, Jan. 7, part of the ongoing legal challenges contesting the 2013 Texas abortion regulations law, which observers agree is headed to the U.S. Supreme Court later this year.

“Texas, in many cases, will be a case of first impressions,” said Denise Burke, vice president of legal affairs for Americans United for Life.

But it wasn’t the first time the appellate court heard arguments against House Bill 2, an omnibus piece of legislation establishing strict standards of operation for Texas abortion providers. In 2013 the court overturned a ruling by Federal Court Judge Lee Yeakel. But in this latest lawsuit—in which two provisions, again, were declared unconstitutional by Yeakel—Stephanie Toti, senior counsel for the Center for Reproductive Rights, argued HB 2 simply targets abortion clinics for closure with the “imposition of burdensome requirements.”

At issue are provisions requiring abortion clinics meet the same ambulatory service center (ASC) regulatory standards as other outpatient medical clinics and that abortion physicians receive admitting privileges to hospitals within a 30-mile radius of the abortion clinic.

Of the five states with ASC laws, Texas’s is the first to be challenged at the appellate level. Admitting privileges have been upheld on appeal in Texas and other states.

Burke noted that abortion rights advocacy began in Texas with Roe vs. Wade, so it is only fitting that a pro-life law passed in Texas challenge the status quo.

In the lawsuit, plaintiffs contend the combined application of the two provisions forced the closure of clinics in El Paso and McAllen thus requiring women to drive 550 miles and 250 miles, respectively, to the nearest Texas abortion clinic. That created an undue burden according to the plaintiffs, who sought an exemption from HB 2 compliance for the two far-flung clinics.

But it is the enigmatic “undue burden” test that has lead appellate courts across the nation to quantify the term relative to their own jurisdictions. Prescribed but not defined in its 1992 Planned Parenthood vs. Casey ruling, the U.S. Supreme Court declared states could regulate the abortion industry but not to the point of creating an “undue burden” for a woman seeking an abortion.

This spring, U.S. 5th Circuit Judges Catharina Haynes, Edward Prado, and Jennifer Walker Elrod—all President George W. Bush appointees—will determine if Texas law crossed that invisible line.

In doing so there may be one line the court could consider crossing—the Texas-New Mexico border. In a 2014 ruling, the 5th Circuit Court blocked the enforcement of a Mississippi admitting privileges law that would have closed the only abortion clinic in the state. The court determined Mississippi’s obligation to provide abortions could not be foisted onto a neighboring state.

Toti argued the same applies to Texas. With the closing of the El Paso clinic, West Texas women seeking an abortion must travel 550 miles to San Antonio—an obvious undue burden, Toti said.

Judge Haynes conceded the point.

“So we have women driving 150 miles, 200, 500 … and the problems stemming from an abortion arise, maybe down the road. And that might be, literally, down the road … in the middle of nowhere. Isn’t that a problem?” Haynes asked Texas Solicitor General Jonathan Mitchell.

Mitchell said the scenario justifies “as applied” relief specifically for the El Paso clinic, which has remained closed since implementation of the law. But even that relief should be denied, he argued, because El Paso women can go to a clinic 17 miles away in Santa Teresa, N.M.

Judge Elrod agreed that Texas cannot “export [its] constitutional obligations” but asked Toti to explain why Texas law should be bound by the court’s Mississippi ruling when the circumstances are different. Mississippi had one abortion clinic. Texas has seven or eight.

As Toti began to respond, Haynes interrupted.

“We know no one is going to drive 550 miles. They’re going to go to New Mexico, and you’re asking us to ignore that,” Haynes said, calling the New Mexico clinic an adequate remedy to the undue burden test.

Toti said “shuttling” Texas women to an abortion clinic across the border defeats the purpose of HB 2 in providing quality abortion services. Haynes told Mitchell his use of the New Mexico clinic as a defense against the need for “as applied” relief seemed hypocritical.

But Mitchell said women can—and do—go anywhere they want for abortion services, noting a New Mexico abortion doctor testified that most of his patients came from Texas even before HB 2 was passed.

Mitchell also said the closure of the lone Rio Grande Valley abortion clinic defies plaintiffs’ undue burden challenge. A previous HB 2 decision by the 5th Circuit ruled the drive from McAllen to the closest clinic in Corpus Christi 153 miles away was not an undue burden.

But the Corpus Christi clinic has closed since that decision, making the San Antonio clinic the closest abortion facility for McAllen women. Mitchell told the court the additional 80 mile drive did not pose a burden.

In another line of questioning put to Toti, Haynes seemed exasperated, not with the plaintiff’s attorney but the federal court decision she was forced to defend.

In his Aug. 29, 2013 decision, Yeakel wrote HB 2 created an “impermissible obstacle” and an “undue burden” on Texas women seeking an abortion and allowed the exemptions for El Paso and McAllen. But he then disqualified both provisions as unconstitutional and unenforceable statewide.

“Wouldn’t you agree that the district court’s order is overbroad?” asked Haynes.

Toti disagreed. All the regulations flow from a single statutory mandate that plaintiffs argued failed to “advance a valid state interest, and because the district court found it was motivated by an improper purpose, it’s invalid in all of its applications.”

Sounding frustrated, Haynes responded, “But there was no effort to parse that at all.”

Instead of dismissing the ASC provision as a whole, Haynes asked if the plaintiffs’ case would not have been better served by analyzing the measure for elements that do not meet a rational standard.

“That kind of decision is much harder for an appellate court to say is improper,” she said.

But Toti said Supreme Court precedent prohibits a district judge from “rewriting law” even in an effort to save it.

When making its ruling, the appellate court must take into consideration its own precedent, that of other appellate courts and whether the Supreme Court will overturn their decision. Elrod listed the disparity of appellate decisions on undue burden alone.

“The courts are all over the map on this,” Mitchell said. But, he added, whatever standard the Supreme Court chooses to use, Texas “clearly wins on the facial challenge, and the only difficult question becomes what’s the status of the ‘as applied’ claims in El Paso and McAllen.”

Amy Hagstrom Miller, president and CEO of Whole Woman’s Health, which has abortion centers in San Antonio and Las Cruces, N.M., attended the hearing. In a written statement posted afterward, Miller said her case received a good hearing from the judges, but she was not hopeful for a favorable outcome.

“We will anxiously be awaiting the Fifth Circuit Court’s decision and actively preparing to mobilize either through the legal process or in our communities to keep our doors open,” she wrote.

The court could have a decision by April or May.