NEW ORLEANS — Texas' strict abortion law was back in court Wednesday, where a three-judge panel expressed skepticism about two parts of the law — but also about the broad trial court order striking down those provisions.
With the specter of the Supreme Court looming, the 5th Circuit of Appeals considered the constitutionality of parts of the law signed by Gov. Rick Perry in 2013. HB2, as the law is known, instituted new regulations for abortion providers in the state of the Texas and banned abortions after 20 weeks of pregnancy.
"We're not here to make abortion policy for America," Judge Jennifer Walker Elrod told the lawyer for Texas abortion providers, noting that the court is "just an inferior court."
Despite her attempt to dismiss the national concerns, the front-row reserved seating in the courtroom for regional and national media and the full courtroom signaled just how closely the law is being watched.
The judges were looking at two provisions of the law: one requiring all doctors performing abortions to have admitting privileges at a hospital and another requiring all facilities in which abortions are performed to meet the state's standards for ambulatory surgical centers (ASC), where outpatient surgery is performed.
These two regulations, abortion providers have argued, will leave fewer than 10 abortion providers in the state, and only in major metropolitan areas.
Specifically, the judges have to address whether they will strike down the provisions in full, in part, or not at all. Additionally, the judges must decide whether they will take action statewide or just in certain areas most impacted by the provisions.
All three judges on the panel — Elrod was joined Judges Edward C. Prado and Catharina Haynes — were appointed to the bench by President George W. Bush, a former Texas governor himself. But the questions on Wednesday, particularly from Haynes but at points from Elrod, suggested a discomfort with the obstacles the law would place in the way of women seeking abortions in Texas.
"I still don't understand why 7,000 square feet is more sterile than 3,000 square feet?" an exasperated Haynes asked the state lawyer, Solicitor General Jonathan Mitchell, at one point, referencing the increased physical space required under the ASC standards.
At the same time, however, Haynes later drilled the plaintiffs' lawyer, Stephanie Toti from the Center for Reproductive Rights, on the lower court's decision to invalidate all of the ASC requirements, rather than going through to determine which aspects of those requirements specifically created an unconstitutional "undue burden."
At one point, when Toti responded that there were many provisions at issue and it would have taken two months to go through all of them, Elrod shot back, "Why wasn't there a two-month trial then?"
By issuing a broad ruling halting enforcement of all of the ASC requirements statewide, the state argued that U.S. District Court Judge Lee Yeakel ignored abortion law's severability clause, which says that an unconstitutional part of the law can be cut while the rest of the law can continue to be enforced. The plaintiffs' lawyer, however, countered that the ASC requirements all are linked together and a recent Supreme Court ruling "makes clear" that judges shouldn't "rewrite" statutes in order to save them from invalidation.
Although the court appeared willing to consider a statewide, facial injunction stopping at least some of the ASC building requirements from going into effect — a debate that, within the 5th Circuit, Elrod said comes down to whether a "large fraction" of women are impacted by the law — it was not clear, if it did so, whether the court would address that in its ruling or send the case back to the trial court to determine which specific parts of the ASC requirements were unconstitutional. None of the panel appeared to be willing to continue the lower court's injunction of the admitting privileges provision. The admitting privileges portion of Yeakel's ruling has been stayed pending appeal.
Even if the court declines to stop enforcement of either or both provisions statewide, the panel appeared concerned with the impact of both provisions specifically on clinics in El Paso and McAllen, two areas where the provisions would have the result of eliminating the availability of abortion providers in the state for hundreds of miles. The court could separately rule that the provisions are unconstitutional as applied to the clinics in those cities, a possibility that even the state only countered minimally.