Health & Science

Abortion Court Fight Continues Behind The Scenes In Texas

Lawyers are preparing for appellate court arguments on Jan. 8 at the Fifth Circuit Court of Appeals in New Orleans. One of the legal disputes centers on how far a woman may have to drive to get an abortion.


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5th circuit court of appeals
Fifth Circuit Court of Appeals in New Orleans


The legal fight over Texas’s abortion law returns to court in January. For the moment, 13 Texas clinics continue to do abortions even though they don’t meet the standards of outpatient surgery centers, as required by the new law. That includes the only clinic in the Valley (in McAllen) and the only one in El Paso.

“The clinics are open thanks to the Supreme Court’s decision allowing them to stay open, but what’s next is the Fifth Circuit is going to hear this case on the merits,” said Esha Bhandari, a staff attorney with the Center for Reproductive Rights. The Center is assisting with the lawsuit challenging the law brought by some abortion providers.

Attorney General and Governor-elect Greg Abbott and a team of state lawyers filed a brief November 3 with the Fifth Circuit that defends the law and lays out their arguments. A coalition of abortion providers filed its brief on November 24.

Both sides wrangle with the definition and application of the concept of “undue burden.” Courts have previously ruled that states can regulate abortion providers, but they can’t make getting an abortion so hard that it becomes an “undue burden” on a woman’s constitutional right to the procedure.

But what exactly is an undue burden? Lawyers for Texas wrote in their filing that even if the law forces those 13 clinics to close eventually, 83 percent of women in Texas of childbearing age will still live less than 150 miles from one of the remaining clinics.

But the abortion providers argue that would be an undue burden for the remaining 17 percent of women who live farther away, and that’s more than 900,000 women.

Bhandari said there’s just no reason for the law to require all abortions to take place in a surgery center.

“We argue that the state actually needs to have a medical justification for the law it’s putting forth, which is supposedly to improve women’s health,” she said. “The state has taken the position that it doesn’t need medical evidence, it doesn’t need anything beyond simply speculation that a law might improve women’s health.”




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