Fifth Circuit Judges Hear Arguments on Texas' Restrictive Abortion Law

Yesterday, a panel of three judges from the U.S. Court of Appeals for the Fifth Circuit heard oral arguments against Texas' extremely restrictive new abortion law, which has shuttered abortion clinics statewide and severely limited women's access to reproductive health services.

Two of the judges who heard oral arguments yesterday — Jennifer Walker Elrod and Catharina Haynes, both Bush-appointed, staunch conservatives — have made their positions on abortion quite clear, having voted in October to overturn a lower court's decision to prevent the restrictive law from going into effect. The third panel member, Judge Edith Jones, previously upheld Texas' forced-ultrasound-before-abortion law (and, BONUS: she was also the subject of an ethics inquiry after making remarks implying that African-Americans and Latinos are "predisposed to crime.") Suffice to say, it's rather unlikely that the Ghost of Reproductive Agency Past visited the trio over the holiday in order to instruct them in the error of their ways.

As Andrea Grimes reports at RH Reality Check, the Center for Reproductive Rights (CRR) filed the suit against the state along with the American Civil Liberties Union of Texas, Planned Parenthood and a group of Texas abortion providers. The plaintiffs have challenged two specific provisions in HB 2: one, that abortion providers must obtain admitting privileges at hospitals within thirty miles of where perform abortions, and, two, that they must follow FDA protocol when prescribing medical abortion pills instead of following evidence-based protocol that's been developed since the FDA labels were first written.

Janet Crepps, the attorney for the CRR, argued that these requirements are unconstitutional because they put an undue burden on women seeking abortions or reproductive care; conversely, the state argued that there wasn't sufficient evidence to prove that said undue burden exists. Never mind that 34 clinics have reduced or eliminated abortion services since the law went into effect, and 12 clinics have closed entirely. And, as for the Texas Policy Evaluation Project's findings that indicate 22,000 Texans will be without access to abortions, well, the state just decided to argue that that's not veracious.

Grimes tweeted that the judges seemed "hostile to [the] plaintiffs' arguments"; Jones, she noted, was "outright combative." At one point, Crepps brought up the fact that both abortion clinics in the state's rural Rio Grande Valley remain closed, forcing residents to take a six-hour round trip to Corpus Chrisi or a ten-hour round trip to San Antonio in order to obtain the procedure legally. Judge Jones responded that the highway connecting the Rio Grande Valley to San Antonio is a "peculiarly flat and not congested highway" and added that the speed limit is 75 mph. For those women who can't afford a car — much less one that can go 150 miles at a consistent speed of 75 mph— and for those women who can't afford gas or to take a day off work: tough luck. A 300-mile round trip isn't really a burden at all. Never mind that 42 percent of U.S. women who seek abortions are below the federal poverty line, as Tara Culp-Ressler points out at Thinkprogress.

Crepps indicated to RH Reality Check that she's as hopeful as one can be about the case: she stated that the judges were "asking the right questions" and hopes that they're doing so "because they truly have concerns about them and really want to know what the answer is, but you never know."

We can anticipate a ruling within the next few weeks, at which point both the plaintiffs and the defense will have the option of appealing to the Supreme Court.

Image via AP.