With a series of tough questions about a new Texas abortion law, federal appeals judges grilled attorneys Wednesday about a provision requiring abortion facilities to meet hospital-like standards.
The possibility that the three-judge panel of the 5th U.S. Circuit Court of Appeals would rule in favor of the abortion providers seemed slim before Wednesday’s hearing, given that two of the judges had previously upheld some of the state’s abortion restrictions.
The provision is part of House Bill 2, which the Texas Legislature passed during a special session in 2013. It requires facilities that perform abortions to meet the same standards as ambulatory surgical centers. The criteria include minimum sizes for rooms and doorways and additional infrastructure like pipelines for anesthesia.
Judge Catharina Haynes, the most vocal of the three judges Wednesday, questioned the state’s argument that all of the hospital-like standards being imposed on abortion facilities would improve women’s safety.
“What about that improves the standard of care?” Haynes asked Jonathan Mitchell of the Texas solicitor general’s office, referring to requirements for larger rooms in abortion facilities that would force most abortion providers to retrofit their clinics.
“Why can’t you have a sterile environment in a 3,000-square-foot building?”
Mitchell said the requirements are reasonable measures to “enhance accountability” of facilities performing abortions. The ambulatory surgical center provision is meant to create a “uniform rule” of standards to protect women, he said.
Stephanie Toti of the Center for Reproductive Rights, which filed the suit on behalf of the abortion providers, argued that the provision would lead to the closure of most abortion clinics in the state and put more women at risk.
If the law is upheld, only a handful of Texas abortion clinics — all in major metropolitan areas — would remain open, leaving women west or south of San Antonio anywhere from 150 to 500 miles away from a Texas abortion facility, the providers’ attorneys have argued.
Haynes questioned whether this effect of the abortion law made it irrational to claim that its intended purpose was to improve the standard of care “if you have women driving these distances.”
A decision from the judges is not expected for at least several weeks.
In late August, U.S. District Judge Lee Yeakel of Austin struck down the provision just days before it was set to go into effect. The state immediately appealed to the 5th Circuit.