NEW ORLEANS — How bad does it have to get for Texas women for it to be too bad? That was the underlying question behind the sometimes-arcane issues of constitutional precedent and burden of proof at today’s oral argument before an all-female panel of judges at the Fifth Circuit, challenging two parts of Texas’s abortion law.
Would closing a third of the state’s clinics by requiring that abortion providers have admitting privileges within 30 miles be an unconstitutional burden on a woman’s right to an abortion? What if a handful of those doctors had got admitting privileges to reopen those clinics some of the time? Was it going too far if 22,000 Texas women who wanted abortions couldn’t get them? What if the actual number was a little lower?
In questioning the Center for Reproductive Rights’ Janet Crepps, who was arguing on behalf of abortion providers in the state, Judge Edith Jones opined that making women drive an extra 150 miles to an abortion clinic wasn’t so bad.
“Do you know how long that takes in Texas?” she said, grinning. “Seventy-five miles an hour, flat highway, no congestion?”
Another judge on the panel, Catharina Haynes, fixated on the fact that the law, known as HB2, had only made a bad situation worse. “There was a dearth of providers before HB2,” she said. “That’s not a creature of HB2.”
Crepps responded that the Supreme Court has not tended to take into account pre-existing conditions when noting that an abortion restriction is an undue burden. “Before the law, there were abortion providers in the Rio Grande Valley,” Crepps said. “Now there aren’t.”
When Crepps pointed out that both the American Medical Association and the American College of Obstetricians and Gynecologists say the law puts women’s health at risk, Haynes interjected asking why those doctors themselves don’t provide abortions, since some of them may have admitting privileges.
Related: How abortion restrictions are already impacting women in Texas
Crepps said that not all doctors perform all procedures, some have contracts with private practices that prevent them from performing abortions or work at Catholic hospitals, and many would-be providers are afraid of violence and harassment. She pointed out that Dr. George Tiller had been murdered for providing abortions.
“And what did Gosnell do?” countered Jones.
She was referring to a renegade abortion provider in Pennsylvania who was convicted of murdering live infants and the manslaughter of a woman. In context, it was a total non sequitur, but the right has claimed the admitting privileges law is meant to weed out providers like him. (The law’s immediate impact seems to be a rise in women self-inducing abortion, according to providers in the Rio Grande Valley)
The state of Texas has argued that it doesn’t matter what the American Medical Association says, because it has the right to regulate the practice of medicine as it sees fit, without having to prove that it’s based in evidence.
Both Judge Jennifer Elrod and Jones seemed to agree with the state of Texas that the burden of proof is on the plaintiffs, not the state, which is the crucial legal point at stake. But Crepps argued that the state itself had justified the law as benefiting women’s health. More importantly, she said, “We believe, given the constitutional status of abortion as a fundamental right, that means strict scrutiny of health regulations [around it].”
The Judges’ questioning of Texas solicitor general Jonathan Mitchell was more restrained and technical. Jones did remark sardonically, “I know you think you’re preparing for the Supreme Court.” (Indeed, when the preliminary injunction stage was before the Supreme Court, Justice Breyer wrote in his dissent that he believed there were enough votes for the Court to eventually take the case.)
There was less discussion of the complicated medication abortion provision that is also being challenged. District Court Judge Lee Yeakel had said that the off-label protocol could be used if a doctor determined it was better for women’s health. Texas claimed there already is a health exception in the law, but Jones signaled that she was skeptical of that, because the health exception is to an entirely different provision – the 20 week ban. And she noted, as the pro-choice side has, that off-label use is common in medicine. “Botox was originally prescribed for migraines,” she said.
While decisions in such cases can take months, the Fifth Circuit is expected to rule on in the same expedited fashion that the case has already proceeded. If the law is upheld as constitutional, as expected, the last hope for the clinics without admitting privileges is at the Supreme Court.
Irin Carmon