The constitutionality of a Texas law that could force some women to travel hundreds of miles or cross state lines to get a legal abortion were debated Wednesday before a federal appeals court that has already dealt with similar issues in Mississippi.
The 5th U.S. Circuit Court of Appeals had knocked down the Mississippi law that would have shuttered the state’s only abortion clinic, which is in Jackson.
Opponents of a Texas requirement that abortion clinics have the same facilities as surgical centers say it would result in a drop in legal abortion clinics from 17 to eight. None would be in the western half of the state. That includes El Paso, meaning women there would either have to make a 1,200-mile round trip to the nearest Texas clinic in San Antonio or drive into New Mexico, which doesn’t have the same stringent clinic requirements.
The argument is similar to one used against the Mississippi law, which required abortion clinic doctors to have admitting privileges at nearby hospitals. But Judge Catharina Haynes, one of the three 5th Circuit judges who will decide the Texas case, made clear that the circumstances are not the same as she questioned lawyer Stephanie Toti, who represents clinics challenging the law.
Enforcement of the Texas provisions would still leave clinics open in Texas. And El Paso, she noted, is just across the line from New Mexico. “Jackson isn’t right on the border,” Haynes said.
Still, as she questioned attorney Jonathan Mitchell, who argued the case for the Texas law, Haynes also said that the law — which supporters say is aimed at protecting women’s health — could push abortion-seeking Texas women into a state that doesn’t have such high standards for clinics.
“It’s always been legal to cross state lines to get an abortion and there’s a constitutional right to travel,” Mitchell said.
The requirement for ambulatory surgical care standards at abortion clinics, which abortion-rights activists say is an unnecessary and expensive burden, is part of a broader abortion law passed by the Texas Legislature in 2013.
U.S. District Judge Lee Yeakel in Austin ruled against the requirement in August. The 5th Circuit later ruled that Texas could fully implement the abortion law, but the Supreme Court later said the clinics should be allowed to operate, pending appeal.
Joe Pojman, executive director of Texas Alliance for Life, told reporters outside the federal courthouse that abortion will be legal, available and safer in Texas if the law is upheld. “The courts allow medical procedures to be regulated by the states and that’s what this law is about,” he said.
Abortion opponents gathered on the courthouse steps to make the case for the law, while about two dozen abortion-rights demonstrators carrying signs marched around a park across the street.
Haynes heard the case with judges Edward Prado and Jennifer Walker Elrod. All three are appointees of President George W. Bush. Haynes and Elrod questioned attorneys closely on the effects of the law and legal precedents that would guide their decision. There was no indication when they would rule.
Haynes at times seemed skeptical of the need for requirements that opponents of the law say would require small abortion clinics to perhaps double in physical size. However, she and Elrod also questioned whether Yeakel’s August ruling was too broad, covering even seemingly innocuous requirements such as hand-sanitation stations.
“It seems to me, that when you’re going to have a remedy of invalidating a law, statewide, on its face, you have to at least go through and say at least the soap dispensers are OK,” Haynes said.
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