A three-judge federal appeals court panel Monday heard an hour-long debate over the constitutionality of two sections of HB 2, a pro-life 2013 Texas law.
The consensus, for what it’s worth, among media accounts is that judges Jennifer Walker Elrod, Catharina Haynes, and Edith Jones were skeptical of the plaintiff’s arguments made on behalf of Planned Parenthood and a number of abortionists by Janet Crepps, a lawyer for the New York-based Center for Reproductive Rights.
The 5th U.S. Circuit Court of Appeals panel did not indicate when a decision would be rendered on U.S. District Judge Lee Yeakel’s October ruling which overturned portions of HB2. Whichever way the panel rules, the case is expected to be appealed to the Supreme Court.
Plaintiffs challenged two portions of HB2. The first requires that abortionists have admitting privileges to a hospital within 30 miles of the abortion clinic. The second addresses how chemical abortifacients are administered. The law requires the abortionist be in the same room as the woman receiving the chemical abortifacients (which is not the case with so-called ‘web-cam” abortions) and that abortionists follow the protocol approved by the FDA for the use of the two-drug “RU-486” abortion technique.
Crepps and Texas Solicitor General Jonathan Mitchell sparred over the intent and the impact of the provision requiring that abortionists have admitting privileges in a local hospital.
Crepps argued that the law would force abortion clinics to close, and that the Rio Grande Valley area of Texas in particular would be without an abortionist. As a result pregnant women seeking abortions would have to drive 150 miles to have an abortion, Crepps told the panel.
Mitchell rejoined that the plaintiff’s “burden is to show that that 30-mile radius is unconstitutionally burdensome everywhere through the state.” He added, “And they have not met that burden here.”
A key question raised in court and in court filings was whether an absence of abortionists stemmed from HB2 or unrelated factors. For example, The American College of Obstetricians and Gynecologists has stated that “there is no medically sound basis for H.B. 2′s privileges requirement.”
Judge Haynes asked (according to the paraphrase of Andrea Grimes of RhRealitycheck.org) why “if ACOG’s group of thousands of OB-GYNs in Texas felt abortion was an essential procedure, more of them didn’t perform abortions themselves. If more of them didn’t sign on to perform the procedure, thereby reducing access to abortion, she said, ‘that is not a creature of HB 2′s making.’”
Crepps responded that doctors [abortionists] are afraid of violence and harassment. To which Judge Jones asked, “And what did Dr. Gosnell do?” a reference to the abortionist convicted in 2013 of three counts of first degree murder and one count of involuntary manslaughter.
Pro-abortionists say that more than a dozen abortion clinics have closed because of the law, although some (apparently four) have reopened. The obvious question is how many others will sudden ly reopen in the weeks and months to come.
In a November 22 court filing, the state of Texas argued that the new requirements promote the health and safety of women and advance the state’s “interest in protecting fetal life.”
“Although some opponents of (the law) have questioned whether the statute’s health-and-safety benefits will outweigh the costs imposed on abortion providers, the Supreme Court allows states to resolve disagreements within the medical community over the proper standards of practice.”
As NRL News Today reported, on October 28 Judge Yeakel ruled that the admitting privileges provision places an unconstitutional burden on women’s access to abortion. Three days later a 5th Circuit panel (which included two of the judges who heard oral arguments yesterday) allowed Texas to enforce the law while the state appealed Yeakel’s decision.
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In a 20-page decision, Judges Priscilla R. Owen, Jennifer Walker Elrod, and Catharina Haynes wrote, “[T]here is a substantial likelihood that the state will prevail in its argument that Planned Parenthood failed to establish an undue burden on women seeking abortions or that the hospital-admitting-privileges requirement creates a substantial obstacle in the path of a woman seeking an abortion.” (See nrlc.cc/1iuZmDM.)
On November 28 the U.S. Supreme Court voted not to block (“stay”) the appeals court’s action allowing the law to be enforced.
HB 2 was passed in July by the Texas Legislature and signed into law by Gov. Perry. The overall bill is best known for pro-abortion state Senator Wendy Davis’s filibuster which temporarily foiled the will of the legislature and the people of Texas. Davis subsequently used the enormous media attention she received as a springboard to announce that she was running for governor.
As NRL News Today has reported, the silence of pro-abortionists was deafening on Texas’ Pain-Capable Unborn Child Protection Act. That law which prohibits aborting babies capable of feeling pain, was never challenged and went into effect in October, the same day Yeakel issued his injunction.
Reprinted with permission from NRLC