What to Expect as the 5th Circuit Hears Final Arguments in the Texas Abortion Case

A South Dallas Planned Parenthood clinic that's going to stay open no matter what the 5th Circuit says.
A South Dallas Planned Parenthood clinic that's going to stay open no matter what the 5th Circuit says.
Stephen Young

The new year will ring in with two major skirmishes in the nation's culture wars, as the 5th U.S. Circuit Court of Appeals is set to hear oral arguments in one case challenging Texas' restrictive new abortion law and another seeking to overturn the state's ban on same-sex marriage. The three-judge panels that will hear arguments are set, and first up on January 6 is Whole Women's Health vs. Lakey (the case challenging House Bill 2's abortion regulations). Then, on January 9, the court tackles DeLeon vs. Perry and gay marriage. Let's take a look at what's likely to happen with the HB2 case first. A review of the gay-marriage case will be posted shortly.

The Case Whole Women's Health vs. Lakey is the second case arising from Texas' draconian HB2. The first, decided in March, ended with the court affirming HB2's requirement that doctors performing abortions must have admitting privileges at a hospital located within 30 miles of the clinic where the abortion took place. The first suit also challenged changes made in HB2 to the protocols allowed in the administering of medication-induced abortions.

The suit being heard next week alleges that HB2's requirement that any health clinic where abortions are performed be a certified ambulatory surgical center places an undue burden on Texas women seeking the procedure. Once effective, the requirements would close all but eight abortion providers in the state. Much of South and West Texas wouldn't be anywhere close to an abortion provider. Any woman in Midland seeking an abortion would face at least a 300-mile drive to get a constitutionally protected medical procedure. The state contends that the requirements increase safety. Even if they don't, the state has argued, the requirements are legal because the travel requirements created are not an undue burden on a "large fraction" of Texas women. Seventeen percent of reproductive-aged women in Texas would live 150 miles or more from the closest abortion provider were HB2 to take effect.

U.S. District Judge Lee Yeakel ruled August 29 that the surgical-center requirement did, in fact, place an undue burden on women seeking an abortion. Texas immediately appealed to the 5th Circuit, which stayed the lower court ruling on October 2, allowing the state to enforce the law. On October 14, the U.S. Supreme Court lifted the stay pending the final resolution of the state's appeal.

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What's at Stake? If the new three-judge panel that will hear the final oral arguments rules in favor of the state, there will be fewer than 10 abortion providers open in the nation's second most populous state. There is a likelihood, according to researcher's who've studied the effects of HB2, that could me more women seeking out illegal abortions. The fight over abortion rights in Texas would be over, at least until an increasingly conservative Legislature tries to restrict access further or the Supreme Court decides to take up the HB2 case or a number of similar laws that have been passed in other states. That potential Supreme Court case would be the biggest for abortion rights since Roe vs. Wade.

The Judges Each of the three judges set to hear Whole Women's Health vs. Lakey was appointed by President George W. Bush. Judge Jennifer Walker Elrod wrote the opinion granting the initial stay in the case. Her opinion says that she thinks the state is likely to prevail after the full case is heard. Judge Catharina Haynes voted in favor of the admitting privilege and medical abortion requirements as part of the panel that heard the first challenge to HB2. On another panel, Judge Edward C. Prado might be considered the swing vote. Despite being appointed by Bush, Prado is considered a moderate. He was suggested as a Supreme Court candidate during W's presidency because it was thought he would be easily confirmed by Senate Democrats. Elrod and Haynes being on the panel should make this a slam dunk for the state.


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