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Fifth Circuit hears HB2 arguments

As always with anything that involves the Fifth Circuit, pessimism is called for.

Federal appeals court judges who got their first look at the latest challenge to Texas’ tough new abortion law Friday appeared to show support for the law but some reluctance to immediately allow it to be enforced as the legal fight over it continues.

The three-judge panel of the 5th U.S. Circuit Court of Appeals took turns firing questions at lawyers for the state and abortion providers in a hearing over the state’s request for permission to enforce parts of the law that were thrown out by an Austin-based judge last month.

Texas Solicitor General Jonathan Mitchell attacked the local judge’s decision, arguing it did not follow precedent and was likely to be reversed on appeal. Stephanie Toti, representing the providers, said the state did not face irreparable harm by not being able to enforce the law immediately.

Both sides seemed to score points at the hearing in New Orleans, which stretched more than 40 minutes past its one-hour allotment.


On Friday, Yeakel’s latest decision was scrutinized in questions from the two judges on the panel appointed by Republicans – Judge Jerry E. Smith, appointed by Ronald Reagan, and Judge Jennifer Walker Elrod, appointed by George W. Bush.

Elrod, who served on the panel that upheld the law the first time around, was especially critical of the abortion providers who brought the second lawsuit this spring. At one point, she asked Toti to explain why the number of women unable to get abortions has been lower than the providers claimed in the first suit.


Smith, while generally supportive of the state’s arguments, seemed to show that a quick win for the state was not certain.

The judge interrupted Mitchell less than a minute into his argument to question why the state waited two days to file an “emergency” motion to the appeals court.

“It may appear that I’m just trying to give you a hard time, but I think it really goes to the seriousness of the state’s claim of irreparable harm,” he said.

Before you get any hopes up at that, read the AusChron’s coverage of the hearing.

The decision now falls to a three-judge panel, a mixed-bag in terms of how they rule on reproductive rights restrictions: Justice Jennifer Walker Elrod, a George W. Bush appointee, sat on a panel that previously blocked Yeakel’s ruling and sided with the state on the hospital admitting privileges rule; Justice Stephen Higginson, appointed by Barack Obama, voted against a similar hospital admitting privileges law in Mississippi that would have closed the lone abortion clinic in the state; and then there’s Ronald Reagan-appointee and former Harris County GOP Chairman, Justice Jerry Smith, who upheld Texas’ preabortion sonogram law and single-handedly struck down a decision by Yeakel that banned enforcement of a Texas rule barring Planned Parenthood from a Medicaid program.

Smith may not curry favor with pro-choice advocates for his track record of offending women – while serving as Republican Party chairman, he (ever so charmingly) called feminists a “gaggle of outcasts, misfits, and rejects” and referred to the League of Women Voters as the “Plague of Women Voters,” according to a July 1987 Houston Chronicle article.

Interrupting the beginning of Texas Solicitor General John Mitchell’s argument today, Smith questioned the state claim of “irreparable harm,” and, echoing the 5th Circuit clerk’s response to Abbott, lightly rebuked the A.G.’s office for delaying its motion. Smith said he and the other circuit judges waited “on alert” by their computers all weekend until 11:59pm on Sunday (a whole two days following Yeakel’s expectedly adverse ruling and one day after the state’s notice of appeal) when the motion came in. At that point, there was “no time” for the other side to respond or for the court to read and consider the motion, he said.

“I am a little bit perplexed about the way it was handled by the state,” said Smith. “[…] We thought you felt strongly enough about irreparable harm that you would be filing a motion for stay […] We waited during the day Saturday, you said the motion for stay would be forthcoming – it didn’t, it was not forthcoming.” (Mitchell said they filed it as quickly as they could.)

Maybe Smith is a better judge than his history suggests. When you’re reaching for stuff like that, you know how thin a reed it is. All we can do at this point is wait and see what they rule. The Current has more.

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