NEW ORLEANS — Lawyers for Texas are headed to federal appeals court this week to defend two Republican-backed state policies — on gay marriage and abortion — that were struck down by lower courts last year.
On Wednesday, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit is set to consider a legal challenge to strict abortion regulations that could lead to the closure of most abortion clinics in Texas. On Friday, a different three-judge panel of the same court will hear a case seeking to overturn the state’s longstanding ban on same-sex marriages.
Decisions from the 5th Circuit — which is considered one of the more conservative appellate courts — are expected to take at least several weeks. But the U.S. Supreme Court could have the final word on both issues.
At issue: Texas abortion providers are suing the state over a key provision of the state abortion law known as House Bill 2, which requires facilities that perform abortions to meet the same hospital-like standards as ambulatory surgical centers. This includes minimum sizes for rooms and doorways and additional infrastructure like pipelines for anesthesia. Additionally, the lawsuit asks for two clinics to be exempt from a separate provision of the law that requires doctors who perform abortions to have admitting privileges at a hospital within 30 miles of an abortion clinic. The two clinics, Whole Woman’s Health in McAllen and Reproductive Services in El Paso, shut down because of that provision, the providers say.
Abortion providers say: These regulations will impose obstacles on Texas women seeking abortions that meet the “undue burden” standard needed to prove the new rules unconstitutional. All but eight abortion clinics in Texas will close, leaving women west or south of San Antonio anywhere from 150 to 500 miles away from a Texas abortion facility, according to attorneys from the Center for Reproductive Rights, who brought the lawsuit on behalf of the abortion providers.
The state argues: The regulations are intended to ensure women’s safety. There isn’t sufficient evidence that the abortion law creates an undue burden for the majority of women seeking abortions.
The history: The case against the abortion law, which was passed by the Republican-led Legislature in 2013, has been in court for almost a year. 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, asking the court to allow the law to go into effect as the case went through the appeals process. Though the court initially rejected the state’s request, it allowed the state to enforce the requirements in October. That ruling was eventually reversed by the U.S. Supreme Court.
Who are the judges? The makeup of the panel hearing the case could bolster the state’s odds. Federal appellate judges Edward C. Prado, Jennifer Walker Elrod and Catharina Haynes were all appointed by President George W. Bush, and Elrod and Haynes have already ruled in favor of upholding the state’s abortion law.
SAME-SEX MARRIAGE BAN
At issue: Two same-sex couples are suing the state over Texas’ ban on same-sex marriage.
The couples suing the state argue: Texas’ ban does not grant them equal protection as intended by the 14th Amendment. State law also does not recognize legal unions of same-sex couples who were lawfully married in other states.
The state says: The ban does meet equal protection laws, and the court should not undermine a state’s sovereignty. Texas voters decided in 2005 to define marriage in the state’s constitution as “solely the union of one man and one woman.”
The national landscape: The same-sex marriage ban has been said to be on precarious legal ground as appellate courts across the country have ruled gay marriage legal in almost three-quarters of the country, making Texas one of 14 states that currently do not allow marriages between couples of the same sex.
History of the Texas case: In February, U.S. District Judge Orlando L. Garcia ruled that the state’s ban was unconstitutional because it “violates plaintiffs’ equal protection and due process rights.” Anticipating an appeal, Garcia stayed his ruling, leaving the ban in place while the case works its way through the courts.
Who are the judges? The makeup of the panel is reflective of the predominantly conservative appellate court, with two GOP-appointed judges — Patrick E. Higginbotham and Jerry E. Smith — set to hear the case along with James E. Graves, an Obama appointee.
Also on Friday: The U.S. Supreme Court is meeting to consider whether it will review a gay marriage case. The highest court could take up one of the cases as early as this month, with a decision next summer. Lawyers for Texas and for those suing the state hope the appellate court will rule in the Texas case before then.