Tomorrow at 10:00 a.m., the Fifth Circuit will hear oral argument in Whole Woman’s Health, et al v. Lakey, a case challenging the constitutionality of two provisions of Texas’s recent abortion legislation (House Bill 2): the admitting-privileges (AP) requirement and the ambulatory-surgical-center (ASC) requirement. Under the first requirement, a physician performing an abortion in Texas must have hospital-admission privileges at a hospital within 30 miles of the abortion site. Under the second requirement, an abortion facility must meet the regulatory standards, including construction standards, for ambulatory surgical centers.
After a bench trial at which approximately 20 witnesses testified, the district court entered a final judgment than contained four different injunctions preventing the enforcement of the two requirements discussed above. Specifically, the district court held that: (1) the ASC requirement is unconstitutional as to all abortion facilities in Texas except those that already meet the requirement or that begin operations after Sept. 1, 2014; (2) the ASC requirement is unconstitutional as applied to the provision of medical abortions (i.e., abortions performed using medication rather than surgical procedures); (3) the AP requirement is unconstitutional as applied to two particular abortion facilities, one in McAllen and one in El Paso; and (4) the ASC and AP requirements, considered together, are unconstitutional as applied to all women seeking previability abortions in Texas. The district court’s final judgment became effective on August 29, the same day it was entered.
On August 30, the State appealed to the Fifth Circuit and immediately moved to stay the district court’s judgment. The Fifth Circuit ordered expedited briefing on the motion for stay and announced that it will hear oral argument on the motion at 10:00 a.m. on September 12 in New Orleans. Each side has 30 minutes to convince Judges Smith, Elrod, and Higginson to either grant or deny a stay. If the motion for stay is granted, the district court’s judgment will be suspended pending the resolution of the appeal. In other words, the AP and ASC requirements will become effective as soon as a stay is granted. If the motion is denied, the AP and ASC requirements will be unenforceable at least until the Fifth Circuit resolves the appeal.
As a technical matter, tomorrow’s argument will not decide the appeal. The three-judge panel will rule only on the State’s motion for stay and will not pronounce a final decision on whether House Bill 2 is unconstitutional. A final decision on House Bill 2’s constitutionality will be made by a different Fifth Circuit panel after further briefing. But as a practical matter, the ruling on the motion for stay will have important consequences. All parties agree that if the ASC requirement were to immediately become effective, only 7 or 8 abortion facilities would remain operational in Texas.
Though not a final ruling on the law’s constitutionality, the ruling on the motion for stay will provide important clues on the ultimate outcome. The standard for granting a stay pending appeal involves an inquiry into the likelihood of the State's success on the merits. Specifically, for the State to obtain a stay, the Fifth Circuit must find that the State has made a “strong showing” that it will likely prevail on its argument that the ASC and AP requirements are constitutional. Given the composition of the panel that will hear the motion for stay—a well-balanced panel representative of the various judicial philosophies of the Fifth Circuit as a whole—the panel’s prediction on who will likely win the case may very well turn out to be correct.
But no matter who wins, both sides will face tough questions during tomorrow’s argument. For its part, the State must address the district court’s finding that the cumulative impact of the ASC and AP requirements is to reduce the number of abortion facilities in Texas to at most 8 (located only in Austin, Dallas, Fort Worth, Houston, and San Antonio) and that those facilities will be unable to adequately meet the abortion demand of the entire state. The State will also have to explain why the district court’s conclusion that the clinic closures that would result from the application of the new law would operate for many women just as drastically as a complete ban on abortion. For their part, the appellees will have to convince the Fifth Circuit that the district court’s findings and conclusions have factual support. The district court’s opinion—though 20 pages in length—is written in general terms with few record citations to what witnesses have said. The State wasted no time arguing that the district court’s ruling is at odds with the record developed in the case. The appellees will also have to explain why the district court’s opinion does not run afoul of Abbott II, an earlier case in which the Fifth Circuit rejected a facial challenge to the AP requirement's constitutionality.
Regardless of what the Fifth Circuit does, House Bill 2’s constitutionality will likely end up before the Supreme Court. As Justice Breyer recently wrote, “the underlying legal question—whether the new Texas statute is constitutional—is a difficult question. It is a question, I believe, that at least four Members of this Court will wish to consider irrespective of the Fifth Circuit’s ultimate decision.”