This morning, the Fifth Circuit heard oral argument for over an hour and a half on the State’s emergency motion for stay in Whole Woman’s Health, et al. v. Lakey, the case challenging the constitutionality of two requirements in Texas’s recent abortion legislation. A recording of the argument is available on the court’s website. Below are some quick impressions.
1) The beginning of the argument was deceptively favorable to the plaintiffs (the abortion clinics). Judge Smith opened the questioning by expressing that he was “perplexed” about how the State handled the filing of its emergency motion for stay. The motion was filed at 11:59 p.m. on Sunday, August 31, but the Court expected it earlier that weekend. Judge Smith wondered whether the delay in filing was inconsistent with the State’s position that it would suffer irreparable harm absent an order staying the district court’s judgment. Though Judge Smith’s comment may ensure that the State will file future emergency motions quicker—or at least that it will more clearly inform the Fifth Circuit when it can expect its motions—it’s unlikely to play much of a role in the Court’s ruling.
2) Judge Elrod was the most active panel member, and she directed most of her questions to the plaintiffs. The content of her questions suggests that she is likely to side with the State. She expressed concern that many of the district court’s findings and conclusions lack factual support in the underlying record. For example, she asked whether there was any record evidence that a large fraction of Texas women seeking abortions will be unable to obtain abortions services at the clinics that would remain open if all of the provisions of HB 2 were to go into effect. She also questioned whether a mere decrease in the number of abortion clinics is sufficient to show the imposition of an undue burden on obtaining abortions.
3) Judge Higginson’s questions searched for ways to harmonize the Fifth Circuit’s previous HB 2 decision—Abbott—with less restrictive abortion decisions from the Seventh and Ninth Circuits. He asked tough questions of both sides, but even he expressed concern that the district court may not have followed Abbott. He also wondered whether part of this case was controlled by Mazurek, where the Supreme Court held that the performance of abortions may be restricted to physicians. That is, if the state can restrict the performance of abortions to physicians, why can’t the state restrict the performance of abortions to facilities?
4) Judging solely from the panel’s questioning, the State is likely to obtain a stay of most, if not all, of the district court’s injunctions. That means that HB 2’s provisions will likely go into effect during the pendency of the appeal. The Court’s opinion is most likely to be authored by Judge Elrod—she was part of the Abbott motions and merits panels, she was the most active panel member during today’s oral argument, and she asked questions directly related to what issues have and do not have to be addressed in the Court’s upcoming opinion.