Listening to the oral arguments before the 5th U.S. Circuit Court of Appeals on Friday confirmed what advocates for reproductive rights feared upon seeing the three-judge panel selected to hear the Texas' appeal of a lower-court ruling striking down two sections of House Bill 2, the 2013 legislation enacted to restrict access to abortion. Two of the judges, Jerry E. Smith and Jennifer Elrod, seemed ready to rule in favor of the state, as they did in a previous challenge to HB2. They peppered Stephanie Toti, the attorney representing the clinics bringing the challenge, with questions about whether reducing the number of abortion providers in the state to eight would actually pose an "undue burden" to women in the state seeking abortions.
Stephen Young One of two Dallas clinics that will remain open.
As defined in federal case law, a law fails to meet the undue burden standard if it is too restrictive of one's fundamental rights. The standard has also been applied when a law lacks what former Supreme Court Justice John Paul Stevens called a "legitimate, rational justification."
No major medical organization has ever agreed with the contention made by proponents of HB2 and similar laws that its major requirements -- that doctors who perform abortions have admitting privileges at a nearby hospital and that clinics providing abortions meet the standards for ambulatory surgical centers -- make women safer. In fact, as Dr. Hal Lawrence, the CEO of the American Congress of Obstetricians and Gynecologists has said, the full implementation of the law could lead to women seeking out illegal abortions or failing to get necessary prenatal care, endangering themselves in the process.More »