5th Circuit Weighs Arguments |on Texas Abortion Law Appeal

     NEW ORLEANS (CN) – Almost all abortion clinics in Texas could close overnight, depending how the 5th Circuit rules after a Friday hearing on two contested Texas abortion regulations.
     A three-judge panel at the 5th Circuit Court of Appeals heard arguments on an Austin-based federal judge’s decision to stay Texas abortion provisions that would require abortion facilities to meet the standard of hospital-grade surgical centers and for abortion providers to have additional certification.
     Texas Solicitor General Jonathan F. Mitchell told the judges that although a reversal of the federal judge’s order would effectively close all, or almost all, remaining abortion clinics, the law does not stipulate that more clinics will not open.
     Judge Jennifer Walker Elrod asked Mitchell if he could address during rebuttal whether McAllen and El Paso should be severed from the other regions of Texas with regard to the 5th Circuit ruling on medical abortion because of the city’s poverty and relative isolation.
     Mitchell replied that there has not been an abortion provider in the Rio Grande area for a while and that has been “no problem.”
     During rebuttal much later, Mitchell said there was no indication of a rise in “self-abortion” in the Rio Grande area, and that women seeking abortions in that area can always cross the border and use an abortion clinic in New Mexico.
     Stephanie Toti, an attorney for New York-based Center for Reproductive Rights, which represents Texas abortion clinics, said that in placing the stay, the Austin judge said the proposed abortion regulations would impede rather than advance health.
     Toti said the state has presented no evidence that any harm will come to it if abortion clinics do not upgrade to surgical standards; the state isn’t arguing any harm to public welfare or health if the law is passed, it’s simply arguing that the regulations are the law.
     Judge Elrod asked Toti several times for actual proof or citations from trial records that closing clinics keeps women from obtaining abortions.
     “Where in the record does she say ‘these women are not getting abortions and they would have otherwise’?” Elrod asked.
     Elrod referred to trial testimony from a particular expert who warned that 20,000 people would be unable to have abortions if the proposed clinics closed.
     “It has come to pass,” Elrod said, that most women who wanted an abortion have been able to have one, or at least that’s what statistics presented during trial would indicate.
     Toti disagreed and insisted that the fact that statewide there were previously 41 clinics to provide abortions whereas now there are just 13 speaks for itself.
     Also, according to Toti, the number of abortions performed in the hospital grade ambulatory facilities the new regulations would require have “actually decreased,” because fewer doctors have certification to use the facilities and fewer abortions can be performed in such facilities period.
     Toti said abortion privileges take a doctor at least 170 days to obtain.
     “I still didn’t hear evidence that ‘a large fraction of women would be turned away,'” Elrod said.
     Toti said if the district court’s judgment is overturned all the women with appointments at the 13 clinics currently operating at “full capacity” will get turned away and will likely not have abortions.
     If the judgment is overturned, she said, “just seven or eight” abortion clinics will remain.
     During rebuttal Mitchell told the panel there is no indication that “self-abortions” in El Paso have spiked in the 10 months since the abortion clinics closed.
     Mitchell said that if self-abortions do increase, that doesn’t necessarily have to do with clinic closures.
     Mitchell mentioned an abortion facility that is scheduled to open in New Mexico just one mile across the Texas border and said El Paso residents seeking abortions can go there.
     In closing, Mitchell asked the panel to grant a motion for stay and to issue an expedited ruling.
     The three judge panel was made up of Judge Jennifer Walker Elrod, a George W. Bush appointee, Judge Jerry E. Smith, who was appointed by Ronald Reagan, and Stephen A. Higginson, an appointee of President Barack Obama.
     The hearing, which was slated to last one hour with arguments lasting 30 minutes each, went over by 40 minutes.
Outside, a handful of protestors who had stood before the court earlier in the day, reassembled as rain started to fall; first in drops, then sheets.

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