Texas’ sweeping abortion law was back in court on Wednesday, with judges on the conservative 5th Circuit Court of Appeals asking tough questions about the intent and impact of a law that threatens to shutter all but seven or eight of the state’s remaining clinics. This isn’t the first time HB2 has come before the 5th Circuit, and two of the three judges hearing the case this week had previously upheld parts of the law.
What’s at stake this time around is a provision requiring abortions to be performed in ambulatory surgical centers, which would force existing providers to undergo extensive renovations in order to become mini-hospitals or move to new locations that already meet these requirements. Both options, to rebuild or pick up and move, are incredibly costly, and clinics across the state have said that the expenses involved will likely force them to close. Another part of the law at issue is a requirement that physicians who perform abortions obtain admitting privileges at nearby hospitals, a task that sounds pretty benign but has proved incredibly difficult for providers.
Judges Catharina Haynes, Jennifer Elrod and Edward Prado, all George W. Bush appointees, heard the case. Judge Catharina Haynes, who allowed the law to go into effect last year, seemed skeptical that the renovations required under HB2 would make the procedure, which is already incredibly safe, any safer. “What is the underlying relationship between building requirements and sterility?” she asked.
Less than 0.5 percent of abortions involve major complications, and organizations like the American Congress of Obstetricians and Gynecologists oppose the new law for singling out abortion providers with “regulations that are more stringent for abortion than for other surgical procedures of similar low risk.”
But Texas Solicitor General Jonathan Mitchell replied that the state Legislature based the requirement on the belief held by some medical experts that the renovations improve sterility. Haynes replied that “you can kind of find an expert to say anything,” adding, “I still haven’t understood why 3,000 feet is any less sterile than 7,000 feet.”
Her questions didn’t end there. She also focused on the travel burden the new law imposes. The number of clinics in Texas has dropped from 41 to 16 in the span of a year and a half, forcing women to travel hundreds of miles to access basic medical care. Some have been forced to leave the state to reach the nearest clinic.
“If these restrictions are so necessary, why send women across the border to New Mexico?” Haynes asked, referencing the state’s claim that women are free to travel wherever they’d like to obtain abortion care.
This is a stark departure from what Judge Edith Jones, who was not on this panel, said about the burden of travel during last year’s 5th circuit hearing. In response to the matter of the women who faced a 300-mile round trip to reach an abortion provider, she replied, “Do you know how long that takes in Texas at 75 miles an hour? This is a peculiarly flat and not congested highway.”
The line of questioning during Wednesday’s hearing gave advocates and providers in the state hope that judges understood the harm the law has caused Texas women. “They understood what a burden it is for women in McAllen and El Paso,” Amy Hagstrom Miller, the CEO of Whole Woman’s Health, told RH Reality Check. She added that she felt “very encouraged” after the Wednesday hearing.
Encouraged as she may be, Hagstrom Miller also said she is prepared to continue to fight if the law is upheld. “We are very committed to challenge this all the way up to the Supreme Court if need be,” she said.