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Fifth Circuit will hear HB2 enforcement arguments next Friday

The temporary reprieve will last at least one more week.

Texas abortion providers’ next hurdle in their legal fight against strict abortion regulations is set for next week in a hearing scheduled for federal court.

State attorneys and lawyers representing a coalition of abortion providers will face off on Sept. 12 in New Orleans, where the U.S. 5th Circuit Court of Appeals will consider whether to allow Texas to enforce a key provision of a new law that the providers say would lead to the closure of most abortion clinics in the state.


A decision from the 5th Circuit could allow the regulation to go into effect as the case goes through the appeals process. But on Tuesday evening, the appeals court rejected the state’s emergency petition to enforce the law, pointing out that state attorneys — led by Attorney General Greg Abbott — had submitted a “tardy motion.” In its rejection, the 5th Circuit’s clerk wrote that Abbott, the Republican candidate for governor, and his team had waited to file the motion until 11:59 p.m. the day before the ambulatory surgical center provision was set to take effect.

“This did not allow time for a response, or for the court to adequately to consider the motion, before the scheduled effective date” despite the state’s claims of “irreparable harm,” wrote court clerk Lyle W. Cayce in a short response from the court.

Yeakel also sided with the abortion providers on a separate provision of the law, which requires all doctors who perform abortions to have admitting privileges at a hospital within 30 miles of an abortion clinic. The providers argued that the provision was unconstitutional as applied to two clinics that shut down because of it: Whole Woman’s Health in McAllen and Reproductive Services in El Paso.

State attorneys contend in their petition that Texas should be allowed to enforce the admitting privileges provision during the appeals process because language in Yeakel’s ruling “appears to be intended” to invalidate the provision statewide. Both parties are now questioning how to interpret the ruling.

See here for the background, and the Chron story linked above for more. I can’t even begin to imagine what kind of “harm” the state might suffer if it’s not allowed to enforce this godawful law. Even putting my personal feelings aside, what does “harm” mean in this context? To me, “harm” implies some kind of loss, which in this context I would think means revenue, or land, or natural resources, that sort of thing. Maybe I’m being too narrow in my thinking. Even if the state is saying that their lessened ability to “protect” fetuses is the harm, isn’t that argument undermined by their claim that HB2 doesn’t present an “undue burden” to women who seek abortions? I mean, if the state is saying HB2 is no big deal because women can just drive a little farther, then what exactly do they think they’re protecting? I swear, the logic they’ve employed in case after case lately is enough to give you the bends.

Esha Bhandari, an attorney representing the abortion clinics, said she was encouraged by the 5th Circuit’s initial rejection of the state’s petition because it will give the providers an opportunity to make their case at next week’s hearing on why the regulations are inappropriate.

Like I said before, I’m not willing to put any faith in the Fifth Circuit just yet. I hope this is a valid inference to draw, but they’re going to have to prove it to me. RH Reality Check has more.

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