Texas abortion law gets federal appeals court review

NEW ORLEANS -- A federal appeals court heard arguments Monday on whether the state of Texas can enforce a law that led to the closing of several abortion clinics, a case that ultimately appears bound for the U.S. Supreme Court.

A three-judge panel of the 5th U.S. Circuit Court of Appeals in New Orleans didn't indicate how soon it would rule on whether a district judge erred in declaring parts of the 2013 law unconstitutional.

The groups say U.S. District Judge Lee Yeakel correctly ruled in October that the provisions place an unconstitutional burden on women's access to abortion. But the state argues that the new requirements promote the health and safety of abortion patients and advance the state's "interest in protecting fetal life."

An Oct. 31 ruling by the 5th Circuit allowed Texas to enforce the law while it appealed the decision. Judges Jennifer Walker Elrod and Catharina Haynes, two of the three judges on the panel that stayed Yeakel's ruling, also heard Monday's arguments.

More than a dozen Texas abortion clinics closed after the law took effect, but some have since reopened, according to the groups opposed to the law.

Janet Crepps, a New York-based lawyer for the Center for Reproductive Rights, said the Rio Grande Valley had two abortion providers before the law took effect and currently has none.

"Women are now forced to travel 150 (miles) or a 300-mile-round trip," she said.

5th Circuit Judge Edith Jones, however, questioned whether a drive of that length truly places an undue burden on women seeking an abortion.

Texas Solicitor General Jonathan Mitchell said the groups had no way of knowing how clinics would be affected by the law before it took effect. Jones and Haynes also cast doubt on the groups' forecast that the privileges requirement would force at least one-third of the state's abortion clinics to close, denying more than 20,000 women access to an abortion annually.

"Predicting the future is hard," Haynes said. "Addressing the past is far more straightforward."

The law's supporters also accuse its opponents of overstating how many abortion providers are affected by the admitting-privileges provision.

"The Supreme Court allows states to regulate abortion to ensure women have all the information they need to make an informed decision and to make sure it's done in a safe manner," said Joe Pojman, executive director of Texas Alliance for Life, said outside the courtroom after the hearing. "That's all this law does."

Haynes pressed Mitchell to explain why lawmakers settled on 30 miles as the "magic" distance in the admitting-privileges provision.

"In a state the size of Texas, 30 miles seems a little bit short," she said.

"Their burden is to show that the 30-mile radius is unconstitutionally burdensome anywhere in the state," Mitchell said of the law's opponents. "And they have not met that burden here."

Haynes also questioned whether a lack of abortion providers in Texas is tied to the 2013 law or results from unrelated factors.

Crepps said many doctors who have hospital admitting privileges choose not to provide abortions because they are "rightfully afraid of the violence and harassment" that other providers have faced.

In November, the groups challenging the new provisions asked the U.S. Supreme Court to overturn the 5th Circuit's stay of Yeakel's ruling. The high court rejected the request in a 5-4 opinion. Justice Stephen Breyer wrote in the minority opinion that he believes at least four justices will vote to hear the case no matter how the 5th Circuit ultimate rules.

The 2013 law also requires abortion providers to follow a U.S. Food and Drug Administration protocol in administering abortion-inducing drugs. The FDA protocol limits the use of the drugs to the first 49 days after a woman's last menstrual period, but many doctors have developed an "off-label" protocol that permits a drug-induced abortion up to 63 days after the last menstrual period.

"Abortion doctors do not have a constitutional right to second-guess the FDA's judgment," Mitchell argued.

The law's road to passage was a dramatic one: The bill failed during a special session of the Texas legislature in June after state Sen. Wendy Davis, a Democrat, successfully led a 13-hour filibuster to stymie passage.