The Fifth Circuit heard oral arguments on Monday in the federal challenge against Texas' recently enacted abortion regulations.
Comments by members of the three-judge panel gave an air of skepticism to the court over the assertion that the new law creates an undue burden on Texas women, reports the Houston Chronicle.
Why was the all-female panel of Fifth Circuit judges so skeptical?
All-Female Panel Presses For Answers
The panel that heard Planned Parenthood v. Abbott on Monday was made up of three Fifth Circuit judges:
- Judge Edith Jones. Notably removed from a death penalty case for alleged racial bias.
- Judge Jennifer Elrod. Likes the word "surplusage" and sided with common sense over procedure in the notorious candy cane case.
- Judge Catharina Haynes. The final Bush nominee to the Fifth Circuit confirmed in 2008.
What the judges seemed somewhat skeptical about was that admitting privileges requirement -- part of the new abortion law being challenged -- actually provided an undue burden. The majority of SCOTUS seemed to share those doubts when it affirmed the stay on the district court's judgment.
More specifically, Planned Parenthood and its advocates had claimed that the law would shutter one-third of the state's abortion clinics, imposing an undue burden for women in distant rural areas.
However, Judge Jones put words to the critics by reminding everyone that "hundreds of miles" is only a handful hours on a flat Texas highway at 75 mph, reports the Chronicle.
Is Distance or Travel Really an Undue Burden?
When the Fifth Circuit first imposed the stay on the lower court's injunction, it considered the assertion that the "admitting privileges" provision would shutter one-third of the state's clinics.
Janet Crepps, an attorney for the Center for Reproductive Rights, was challenged by the panel to answer why, if abortion clinics in major cities like Houston and Dallas are remaining open despite the new law, that the law is being challenged so broadly. According to the Chronicle, Judge Haynes queried that if the abortion regulations were problematic in the Rio Grande Valley, why not bring an as-applied challenge there?
Even if women in the historically low-income Rio Grande Valley are financially strained in their ability to travel to urban centers for abortion services, it may not constitute an undue burden. In Women's Medical Professional Corp. v. Baird, the Sixth Circuit upheld an Ohio law which closed an abortion clinic in Dayton, in part because there were other clinics in other nearby cities.
As the plurality in Planned Parenthood v. Casey noted, particular burdens on "women who have the fewest financial resources, [or] those who must travel long distances" are not necessarily substantial obstacles that constitute an undue burden.
It's been more than two decades since the U.S. Supreme Court decided Casey, and perhaps the Fifth Circuit will give a clearer answer on how forcing women to travel hundreds of miles to procure an abortion weighs against their constitutional rights.
- A Skeptical Fifth Circuit Hears a Challenge to Texas's New Abortion Law (The Wire)
- Texas Abortion Law Blocked in Part by Federal Court (FindLaw's U.S. 5th Circuit Blog)
- Supreme Court Declines to Block Texas Abortion Restrictions (FindLaw's U.S. Supreme Court Blog)
- D.C. Circuit to Review 5th Circuit Judge Jones' Misconduct (FindLaw's D.C. Circuit Blog)