Fifth Circuit to hear HB2 appeal in January

Gird your loins.

A federal appeals court has scheduled oral arguments about the constitutionality of Texas’ tough new abortion law for the first week of January, setting up a rapid timeline that may accelerate the case’s expected trip to the U.S. Supreme Court.

Solicitor General Jonathan Mitchell and lawyers representing abortion providers are planning to appear in front of the 5th U.S. Circuit Court of Appeals in New Orleans during the week of Jan. 5, the state disclosed in a legal brief filed Monday.

That is the same week the court is scheduled to consider bans on gay marriage in Texas and Louisiana, making it a big week for laws of the Lone Star State. The appeals court could rule at any time after the arguments.


The high court’s order last month gave hope to abortion providers, especially because the 5th Circuit has proven unfriendly to their arguments. The New Orleans-based court has twice reversed lower court orders that found the law unconstitutional because of how greatly it reduced abortion access.

In Monday’s filing, the state urged the appeals court to once again uphold the law because clinics would remain in all major metropolitan areas and within a 250-mile drive for the vast majority of Texans.

The state also argued that the Supreme Court’s order did not serve as an indication that the high court believes the law is unconstitutional.

See here, here, here, and here for the background. This is the appeal on the merits of the HB2 law; the earlier action had been on whether or not to allow HB2 to be enforced while the state appealed the lower court ruling that enjoined it. I think we all know how the Fifth Circuit will rule, but the ritual must be observed. As the story says, they will have a busy January.

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