This morning, a three-judge panel in the United States Court of Appeals for the Fifth Circuit heard arguments in Planned Parenthood v. Abbott, the case over the constitutionality of Texas’ most recent Pro-Life law, HB2. During the lively hearing that examined the existence of any undue burden, all three justices staunchly sought to review and analyze the law that raises standards on abortionists and the administration of the drugs used in chemical abortions.
The panelists were former Chief Justice Edith Jones, Justices Jennifer Elrod, and Catharina Haynes. Justice Elrod and Justice Haynes served on the three-judge panel that temporarily green-lighted the law to take effect in October, reversing the injunction issued by Judge Lee Yeakel. Also, former Chief Justice Edith is no stranger to Pro-Life legislation; she wrote the 2012 opinion affirming Texas’s landmark Sonogram Law.
The trial today was considering two sections of the Pro-Life omnibus bill: the requirement that abortionists receive admitting privileges from a hospital within 30 miles of where he commits abortions and the requirement that abortionists must follow the FDA protocol when administering abortion-inducing drugs.
The all-female judicial panel was extremely critical and tenaciously questioned both sides.
In one of their earlier briefs, Planned Parenthood cited research by Joseph Potter, a demographer from the University of Texas, that claimed more than 22,000 women would be unable to access an abortion once the law took effect. This prediction has proven to be inaccurate because it assumed a third of abortion clinics in Texas would be permanently closed, which the justices pointed out has not happened.
In light of this crucial evidence, one of the justices seemed to establish the belief that the manner in which Planned Parenthood brought about the suit does not indicate a strong footing of fact; “Predicting the future is hard.”
Establishing a clear knowledge of fact versus prediction is a central issue of review for the justices because abortion providers challenging the law decided to bring a facial challenge before the court, claiming these higher standards for abortionists would be unconstitutional in every case.
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Planned Parenthood’s lawyers have been walking a fine line between their furthering of undue burden arguments against the law and the advancements of the facial challenge against the legislation. This morning, it seemed that the federal judges did not think Planned Parenthood struck a balance between these conflicting elements.
