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5th Cir. Lifts Stay on Enforcing Tex. Abortion Clinic Law; 13 Clinics Projected to Close

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By Mark Wilson, Esq. on October 03, 2014 1:10 PM

Last month, the Fifth Circuit Court of Appeals held oral arguments on whether to issue an emergency stay of the district court's order enjoining enforcement of Texas' abortion law pending the outcome of the appeal on the merits. It's telling that Judge Jennifer Walker Elrod, who was the most hostile of the three judges to the opponents of the law, wrote the opinion here.

The Fifth Circuit lifted the stay yesterday, allowing the law to be enforced, which, according to The New York Times, necessitated the immediate closure of 13 abortion clinics that weren't in compliance with the questionably necessary requirements forcing abortion clinics to become little hospitals.

These Are My Facts

Two provisions are at issue: first, that a physician at an abortion clinic has to have admitting privileges at a hospital within 30 miles of where he performs abortions. Second, abortion clinics must meet the same requirements as "ambulatory surgical centers."

The first requirement was easily disposed of: circuit precedent says that admitting privilege requirements are facially constitutional. The second requirement focuses on whether making abortion clinics conform to the same standards as ambulatory surgical centers is an undue burden, everyone in the case having agreed that such a rule passes rational basis review.

In lifting the district court's stay, Elrod had to find that the district court misinterpreted not only the statute (which would be a de novo question of law) but also the state's reason for the statute. District courts' factual findings are accorded great deference, and while Elrod didn't say specifically that's what she was doing, well -- that's what she was doing. As a matter of fact, the district court found that the state treated abortion providers differently from other clinics required to be upgraded to ambulatory surgical centers. Elrod disagreed with this factual finding.

Fuzzy Math

The law could yet be unconstitutional if it has the effect of making abortions hard to get, but this again is a difficult test; how many people have to be unable to get abortions before the law is unconstitutional? The answer in the Fifth Circuit is a "large fraction," but the district court stopped at a lower threshold, a "significant number." Based on the plaintiffs' expert's opinion, only about 1/6 of women of reproductive age would live more than 150 miles from an abortion clinic (though Elrod, in the next paragraph, conflates "women of reproductive age" with "women seeking abortions," which are probably not the same denominator).

"Plaintiffs' suggested approach would make the large fraction test merely a tautology, always resulting in a large fraction," she wrote. But the same is true of her method: Elrod's suggested approach would always result in a small fraction. No one appears to know the numbers that matter; i.e., the number of women actively seeking abortions who live more than 150 miles from an abortion clinic divided by the total number of women actively seeking abortions.

Dissent

Judge Stephen Higginson concurred and dissented in part. He agreed with everything except the closure of clinics in El Paso and McAllen, which was specifically at issue in the district court case. Abortion clinics in Texas aren't uniformly spread out, and those two were the only clinics west and south of San Antonio. While he agreed with the majority's facial challenge analysis as to all clinics in Texas, he disagreed with the as applied challenge as to these clinics specifically.

Nor did he believe there was an emergency: enforcing the stay would preserve the status quo, while lifting it would cause plaintiffs to suffer substantial injury in the form of, you know, not being able to get to an abortion clinic within 150 miles.

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