Appeals court weighs stay on ruling over Texas abortion law

AUSTIN, TX (TIP): Most of the abortion clinics in Texas could close by the weekend depending on what happens in a New Orleans courtroom Friday, September 12. The U.S. 5th U.S. Circuit Court of Appeals will get its first look at the latest challenge to Texas’s tough new abortion law Friday morning as a three-judge panel weighs half an hour of arguments each from supporters and opponents of two regulations under dispute.

At stake is the fate of at least a dozen abortion clinics that were saved from closure or allowed to reopen, thanks to an Austin-based federal judge’s ruling last month against provisions requiring clinics to meet the standards of hospital-style surgical centers and abortion doctors to obtain admitting privileges at a nearby hospital. State lawyers appealing the district judge’s decision are asking permission to enforce the requirements as the case continues. If the appellate court agrees, all but seven of the abortion facilities in the state are expected to close almost immediately.

“I think we’re all just holding our breath,” said Amy Hagstrom Miller, CEO of Whole Woman’s Health, which operates two of the clinics hanging in the balance and filed the lawsuit in April along with other abortion providers. Legal briefs filed by lawyers for the providers and the state show that the arguments Friday likely will mirror those during the week-long trial here last month: the providers will argue the requirements severely reduce abortion access without improving women’s health, while the state will say the requirements protect women and leave enough access to satisfy federal law.

The state will have the burden of showing why it is important for the appeals court to step in and allow enforcement of the law to continue while the trial court judge’s ruling is appealed. “The State will suffer irreparable injury absent a stay because the district court’s injunction prevents the State from enforcing a duly enacted statute,” Attorney General Greg Abbott wrote in his motion for an emergency stay.

Esha Bhandari, an attorney for the providers, said they will argue there is no irreparable harm because one of the provisions at issue has not yet been enforced and enforcement is “not the type of thing a few months down the road can’t be rectified.” The district judge already has rejected a long-shot request by the state to stay his own ruling. While Friday’s arguments in New Orleans will concern only the request for a stay, advocates on both sides will be watching closely for any indication of how the court may be leaning on the overall appeal.

The 5th Circuit is considered one of the most conservative courts in the country, and it acted last fall to uphold a separate part of the tough new Texas law. Both sides acknowledge the state likely caught a break with the outcome of a random selection of the threejudge panel that will hear the arguments Friday. One of the judges on the panel, George W. Bush appointee Jennifer Walker Elrod, was on the panel that unanimously upheld the law last year. Another, Ronald Reagan appointee Jerry E. Smith, was on the panel that upheld another Texas law requiring women seeking an abortion in Texas to first get a sonogram. The third judge, Stephen A. Higginson, is an appointee of President Barack Obama who recently voted to strike down a Mississippi law that was similar to the Texas measure.

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