And so we await a ruling, followed by whatever the Fifth Circuit will pull out of its posterior.
Stefanie Toti, representing the Center for Reproductive Rights, said the requirements imposed by the ambulatory surgical center rules single out abortion providers, as three-fourths of other ASCs in the state are exempt from the costly building code requirements – effectively amounting to a multi-million dollar tax on abortion providers.
The state provided no medical evidence to show the law is necessary or promotes the health and safety of women, said Toti. As few as seven abortion clinics would survive the law, creating a “substantial obstacle” for women who do not live in one of the five metro areas (Austin, Houston, Forth Worth, Dallas and San Antonio) where remaining providers exist. These women would need to travel 150 to up to 500 miles for abortion care.
“Would we allow that to stand for someone receiving an appendectomy or a sprained ankle? I have a problem believing it’s okay to send someone 150 miles away for care when they could get it closer,” commented Judge Lee Yeakel, perhaps offering a glimpse of his upcoming ruling. “I don’t think we would let this stand for any other minor medical procedure.”
In her concluding remarks, Toti said the state is trying to do indirectly what it cannot do directly since Roe v. Wade– eliminate abortion service from huge regions of the state.
State Solicitor General Jonathan Mitchell relied heavily on the previous ruling by the 5th Circuit Court of Appeals, which had found in favor of HB 2. While the definition of undue burden to women is not necessarily clear, the impact of the law would not “come close” to even a minimal standard of burden, said Mitchell, as 83% of Texas women will live within 150 miles of an abortion clinics. Plaintiffs failed to show that any patient would not be able to obtain abortion services as result of HB 2, said Mitchell.
The state also sought to defend as common practice anti-abortion advocate Vincent Rue’s paid consultant work for the Attorney General – including extensive editing and drafting of defendant testimony. But Judge Yeakel slammed the AG’s office, saying the “state effectively tried to hide Rue’s involvement,” and he described the evidence as “very disturbing” in the eyes of the court.
See here and here for some background. The AusChron’s daily coverage has been great, as has RH Reality Check‘s – go click those links and proceed to their full slate of stories. The Trib homes in on the Big Question that will need to be addressed.
“Is Texas to be treated exactly like Rhode Island?” Yeakel said, adding that proving whether the regulation imposed an undue burden is the “crux” of this case. Yeakel’s decision, expected to be made before the ASC requirement goes into effect, is likely to be immediately appealed by the losing party. Yeakel acknowledged during Wednesday’s hearing that the case could eventually reach the U.S. Supreme Court.
When the ASC requirement goes into effect, only six existing abortion facilities in Texas that meet the ASC standards — all of them in major cities — will remain open to provide abortions, with an additional Planned Parenthood facility scheduled to open in Dallas before September.
But the requirement would leave women living west or south of San Antonio anywhere from 150 to 500 miles away from a Texas abortion facility.
Yeakel interrupted the attorneys several times during their closing arguments, asking whether the law presented “equal protection problems” for women who live in remote areas of large states like Texas. He also questioned whether the standard of an undue burden in abortion cases, which could make it permissible to force a woman to travel an entire day to obtain an abortion, would be applied differently to other medical procedures.
“I have a problem believing that it is reasonable to require someone to travel 150 miles to obtain a procedure they could get” nearby, Yeakel said. “Would we stand for that if you had a sprained ankle or needed an appendectomy? I don’t believe we would stand for this for any other medical procedure.”
Yeakel’s questions provided some insight into what his ruling in the case could determine. But he could be limited by a decision made by a three-judge panel of the 5th Circuit Court of Appeals in March that ruled that traveling 150 miles to a facility was not an “undue burden.”
“I’m bound by the 5th Circuit, but I may disagree with them,” Yeakel said.
In other words, What Will The Fifth Circuit Do? They have not acted on the request for an en banc hearing of their ruling on the first HB2 appeal, which leads to the speculation that they’re waiting for this case so they can address it all at once. Their recent ruling in the Mississippi case, which has since been appealed, offers a slim amount of hope, but as the Fifth Circuit is where hope and progress go to die, I wouldn’t get too giddy. The Statesman and Mother Jones have more.