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Sunday, June 23, 2024 | Back issues
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Appellate Judges Skewer Texas Abortion Limits

NEW ORLEANS (CN) - The 5th Circuit on Wednesday heard arguments on whether a Texas law that requires stricter building codes and hospital admitting privileges for abortion clinics imposes an "undue burden" on women.

The law, Texas HB2, requires facilities that provide abortions to meet ambulatory surgical center requirements, including hospital-style equipment and wider hallways - improvements that opponents say could cost clinics millions.

During oral argument Wednesday, Judge Catharina Haynes questioned the importance of the state's requirements.

For instance, Haynes asked, why does the state specify a clinic must be 7,000 square feet?

"Why can't you have a sterile environment in a 3,000-foot" clinic? Haynes asked.

Texas Solicitor General Jonathan Mitchell said the requirement will improve safety.

Haynes was skeptical.

"The effect has been, at least in West Texas, that there are effectively" no remaining abortion clinics, Haynes said.

Later, during rebuttal, Haynes addressed the state's intent again, when she asked whether Texas thought the stringent requirements would be good for citizens, but as the requirements were put into effect they turned out to not be so useful.

Another new requirement, which was touched on during oral argument but was not subject for debate Wednesday, is a mandate that abortion providers have admitting privileges to a hospital within 30 miles of the clinic.

Before the two laws - building codes and hospital admitting privileges - were introduced, Texas had roughly 40 abortion clinics.

If the state's surgical requirement goes into effect, only about eight clinics will remain open.

As a result, women in some parts of the state will have to drive hundreds of miles to have an abortion in Texas.

Haynes and Judge Jennifer Elrod wondered whether long trips to abortion clinics would help or hurt women's health.

Haynes said she could see that while Texas claims the new requirements are good for women and that any problems may be down the road, maybe "down the road" is literally where a problem could lie - "where a woman is literally driving down the road, in the middle of nowhere in West Texas, when she starts bleeding profusely [from a botched abortion]."

"We all know how desolate West Texas is," Haynes said, "not a gas station sometimes for miles."

Doesn't driving along bleeding for miles "pose a threat to women's health?" Haynes asked.

Mitchell, on behalf of Texas, said that women from El Paso are not driving hundreds of miles to get an abortion at the closest Texas clinic; they are simply crossing the border and having abortions in New Mexico.

But if Texas "restrictions are so necessary," Haynes asked, "why send women off across the border" to an "unprotected place, where, arguably, the restrictions are lesser?"

"That seems hypocritical," Haynes said.

"It's never been illegal to cross state lines to get an abortion," Mitchell said.

This was the second go-round for the 5th Circuit on this issue. In October 2014, two weeks after hearing arguments on the same topic, the 5th Circuit ruled that surgical center requirements do not create an undue burden.

But two weeks later, the U.S. Supreme Court stayed the 5th Circuit ruling , allowing abortion facilities to remain open pending appeal.

All three judges on the Wednesday panel - Haynes, Elrod and Edward Prado - were appointed by President George W. Bush.

Elrod sat on the 5th Circuit panel that found for the State of Texas in this issue last September.

Outside the courthouse after the hearing, Joe Pojman, executive director of the Texas Alliance for Life, told reporters abortion will still be legal in Texas, there will just be fewer clinics operating.

David Brown, of the plaintiff Center for Reproductive Rights, told Courthouse News that he was pleased to see the judges were so interested in the issue.

"I was very pleased to see the judges had so many probing questions, and that they think it's important," Brown said. "I was happy to see the court appreciates the impact that a law that would close 80 percent of the clinics" would have if it were to go into effect.

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