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Texas Abortion Law: 5th Cir. Considers Stay Pending Appeal

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By Mark Wilson, Esq. on September 15, 2014 3:11 PM

On Friday, the Fifth Circuit heard oral arguments on the issue of whether to issue an emergency stay of enforcement of Texas' abortion law pending resolution of the appeal.

Recall that, in August, a federal district judge held unconstitutional a part of the law requiring abortion clinics to adhere to the same standards as surgical clinics. The result of enforcing the law would be the closure of 13 of the state's 20 abortion clinics, according to The Associated Press.

A Burden on Whom?

The state's argument on appeal was that the stay should be lifted. The test for deciding the issue was comparing the relative harms to the state and to those seeking abortions. The state is harmed, said Jonathan Mitchell, Texas' Solicitor General, whenever its laws aren't enforced, and acknowledging that some women might be harmed, the plaintiffs never demonstrated how many women would be unduly burdened.

"Even if we give the plaintiffs the most plaintiff-friendly standard, they come nowhere close to demonstrating an undue burden in a large fraction of cases," he said. Mitchell claimed that "the vast majority" of women in Texas would still live within 150 miles of a licensed abortion clinic even if the law were given effect.

The Fifth Circuit judges disputed Mitchell's characterization of the law's effect, noting that nowhere in Fifth Circuit abortion jurisprudence is "large fraction" defined, so it's unknown just how many women would have to be burdened before the burden is considered "undue." Mitchell argued that, when determining how many women will be affected, the court should look to all women in Texas as the denominator, rather than all women in Texas seeking abortions.

Maybe Not So 'Substantial'

Stephanie Toti, representing the plaintiffs, had an uphill battle with Judge Jennifer Walker Elrod. Toti argued that even if a large percentage of Texas women would be unaffected because of their proximity to existing abortion clinics, those clinics would be swamped by the large numbers of women who would flock to them, rendering them essentially unusable.

"Where in the record do you have any testimony or evidence to say that a large fraction of the women would not be able to be served because of an ... over-demand for the services at the existing clinics?" asked Judge Elrod. The only evidence of this was, apparently, inferences that could be decided either way, depending on a judge's predilection.

Judge Elrod -- the only woman on the three-judge panel -- disputed Toti's argument that 20,000 women would be unable to get abortions because abortion clinics in Texas would close. It's true that, after the law passed, fewer women got abortions, but Judge Elrod said that no expert had ever determined it was because of the abortion law. "They cannot say that women have not had abortions because of ... HB 2," she said.

Given plaintiffs' difficulty proving harm to a large number of women, the Fifth Circuit may not be inclined to issue an emergency stay pending the outcome of the appeal.

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