Earlier this week in New Orleans, a three-judge panel for the Fifth Circuit Court of Appeals heard arguments for and against Texas’ strongest Pro-Life law, HB2. HB2 passed during the 2013 legislative session in spite of defeated gubernatorial candidate Wendy Davis’ raucous attempt to filibuster the bill. Since its enactment, the law has saved countless lives.
In black-and-white terms, HB2 boils down to patient safety v. unfettered abortion access and life v. death. John Seago, Texas Right to Life’s Legislative Director, was present for proceedings in New Orleans on Wednesday. He commented on the legal battle, saying:
The three-judge panel, all George W. Bush appointees, launched pointed questions at attorneys representing both sides, the state and the abortion industry, respectively. The examination of the issues was lengthy and sought to determine that ambulatory surgical center (ACS) requirements are necessary to increase patient safety, even when clinics are deciding to close instead of complying with the law. In the hearing that went twice as long as scheduled, it was clear that the typically conservative Fifth Circuit was poised to reject the abortion industry’s facial challenge to the ASC requirements statewide. However, the rhetoric and anti-HB2 arguments concerning the distance of travel that constitutes an “undue burden” seems to have resonated with the judges. Therefore, the majority of the hearing focused on the two specific clinics (El Paso and McAllen) cited in the as-applied challenge to HB2 in this lawsuit.
As they have repeatedly done, opponents of the law continued to argue that ambulatory surgical center standards and the requirement that abortionists possess hospital admitting privileges posed “undue burden” on abortion access in Texas.
The notion of undue burden is derived from Planned Parenthood v. Casey, a 1992 Supreme Court case, which is interpreted to convey that abortion cannot be restricted to the point at which significant obstacles to abortion access would exist. However, the language is incredibly vague, and has been sabotaged by abortion advocates in the legal system who toss “undue burden” around any time a Life-affirming law hurts Big Abortion.
Two of the judges on the panel (Judges Elrod and Haynes, respectively), previously established their opinion that multiple HB2 requirements do not pose an undue burden on a Fifth Circuit panel last year. On Wednesday, the judges pressed legal representatives of the abortion industry to delineate clearly the reason behind the undue burden argument. One tactic at use is the “large fraction test.” This evaluation posits that the closure of the abortion mills would pose an undue burden by requiring longer drives for a large fraction of pregnant mothers seeking abortion in Texas.
Judge Catharina Haynes pressed attorneys representing Big Abortion to explain why a long drive was an undue burden (and not, say, just a manageable inconvenience). The judges suggested that, perhaps, long-distance drives posed a problem because of complications following abortion, causing women to be stuck on the road when medical emergencies arise. John Seago recalls: “Judge Haynes admitted that she questioned only one issue in regard to travelling a longer distance for the procedure. Her concern stems from the possibility of women having medical complications after the abortion and as they drove back home through rural and underpopulated areas of West Texas.” Haynes “peppered advocates with questions about the probability women would find themselves hemorrhaging and alone,” he says. The question put the abortion industry in a position they avoid: admit that complications occur, or concede that the long drive isn’t as big a deal as they try to present. This question forced the attorneys for the abortion industry to admit not only that complications do occur, but also that they usually occur a week following the abortion (i.e., on the drive home).
The abortion industry also continued to argue that the ambulatory surgical center standards mandated by HB2 for abortion mills were an undue burden because of the financial investment they would require. According to Texas Right to Life legislative associate Emily Horne, the judges seemed doubtful that ASC standards did indeed pose an undue burden to abortion. Furthermore, as we reported previously, the Fifth Circuit Court has already established precedent that just because a law poses a financial burden on the abortion industry does not mean the law causes unconstitutional undue burdens.