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The Fifth Circuit hears the HB2 arguments

Maybe it’s not a slam dunk for HB2, though I refuse to get my hopes up.

In a long line of tough questioning Wednesday over a new Texas abortion law, federal appeals judges here questioned whether part of a provision requiring abortion facilities to meet hospital-like standards should be struck down.

The possibility that the three-judge panel of the U.S. Fifth Circuit Court of Appeals would rule in favor of the abortion providers seemed slim before this week’s hearing, given that two of the judges had previously upheld some of the state’s abortion restrictions. But on Wednesday, the judges took turns grilling attorneys in taking a deeper dive into the provision.

The provision is part of House Bill 2, which the Texas Legislature passed during a special session in 2013. It requires facilities that perform abortions to meet the same standards as ambulatory surgical centers. This includes minimum sizes for rooms and doorways and additional infrastructure like pipelines for anesthesia. A decision from the Fifth Circuit is not expected for at least several weeks.

Judge Catharina Haynes, the most vocal of the three judges Wednesday, questioned the state’s argument that all of the hospital-like standards being imposed on abortion facilities would improve women’s safety.

“What about that improves the standard of care?” Haynes asked Jonathan Mitchell of the Texas solicitor general’s office, referencing requirements for larger rooms in abortion facilities that would force most abortion providers to retrofit their clinics. “Why can’t you have a sterile environment in a 3,000-square-foot building?”


The judges also zeroed in on the effects of the abortion law on women living in West Texas. Aside from the challenge to the ambulatory surgical center provision, the lawsuit also asks for a reprieve for two clinics from a separate provision of the law that requires doctors who perform abortions to have admitting privileges at a hospital within 30 miles of an abortion clinic.

A separate three-judge panel, which included Haynes and Judge Jennifer Walker Elrod, upheld the provision last year. But the providers’ attorneys argue that the two clinics in question, Whole Woman’s Health in McAllen and Reproductive Services in El Paso, shut down because of that provision. The poor, mostly minority women in these areas are disproportionately affected by the law, they argue.

On Wednesday, Elrod questioned whether a substantial amount of women in this area would face challenges in obtaining an abortion when they could travel to New Mexico for the procedure.

Toti said that the state’s argument that the abortion law is meant to improve patient safety is invalidated if they are going to rely on New Mexico as a nearby alternative because its abortion regulations are not as strict as in Texas.

“The state of Texas is essentially forcing abortion providers out of practice and shuttling these patients to New Mexico,” Toti said.

Haynes agreed, questioning whether the state was “undercutting” its own argument. “If these restrictions are so necessary, why send women across the border to New Mexico?” she said.

I still think the fix is in, but at least they made an effort to appear impartial. I assume that one way or another, this will wind up on SCOTUS’ doorstep. Expect the worst but hope for the best. And let’s keep working on how we can win more elections, since keeping this crap from getting out of the Legislature is ultimately the best medicine.

One more thing, from the Chron story:

The American Medical Association has filed a brief supporting opponents of the law, while groups of abortion survivors and state lawmakers have written in support of it.

WTF is an “abortion survivor”? Would you call a woman that has successfully carried a pregnancy to term a “childbirth survivor”? Because as anyone with an ounce of information knows, childbirth is vastly more hazardous than abortion is. I suspect this is a sleazy attempt to equate abortion with a traumatic event. Shame on the Chronicle for uncritically accepting that kind of bullshit. Unfair Park, Newsdesk, and RH Reality Check has more.

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One Comment

  1. John says:

    Interestingly the Chron seems to have updated the story to remove that line.