On Friday, the Fifth Circuit heard oral arguments on the issue of whether to issue an emergency stay of enforcement of Texas’ abortion law pending resolution of the appeal.

A Burden on Whom?

The state’s argument on appeal was that the stay should be lifted. The test for deciding the issue was comparing the relative harms to the state and to those seeking abortions. The state is harmed, said Jonathan Mitchell, Texas’ Solicitor General, whenever its laws aren’t enforced, and acknowledging that some women might be harmed, the plaintiffs never demonstrated how many women would be unduly burdened.

“Even if we give the plaintiffs the most plaintiff-friendly standard, they come nowhere close to demonstrating an undue burden in a large fraction of cases,” he said. Mitchell claimed that “the vast majority” of women in Texas would still live within 150 miles of a licensed abortion clinic even if the law were given effect.

The Fifth Circuit judges disputed Mitchell’s characterization of the law’s effect, noting that nowhere in Fifth Circuit abortion jurisprudence is “large fraction” defined, so it’s unknown just how many women would have to be burdened before the burden is considered “undue.” Mitchell argued that, when determining how many women will be affected, the court should look to all women in Texas as the denominator, rather than all women in Texas seeking abortions.

Maybe Not So ‘Substantial’

Stephanie Toti, representing the plaintiffs, had an uphill battle with Judge Jennifer Walker Elrod. Toti argued that even if a large percentage of Texas women would be unaffected because of their proximity to existing abortion clinics, those clinics would be swamped by the large numbers of women who would flock to them, rendering them essentially unusable.

Given plaintiffs’ difficulty proving harm to a large number of women, the Fifth Circuit may not be inclined to issue an emergency stay pending the outcome of the appeal.

Related Resources:

  • Texas Claims Abortion Restrictions Don’t Pose Burden (Bloomberg)
  • Attorneys Face Tough Questions in Court Hearing on Texas’ Omnibus Anti-Abortion Law (RH Reality Check)
  • Miss. Abortion Clinic Can Stay Open, Thanks to 1938 Segregation Case (FindLaw’s U.S. Fifth Circuit Blog)
  • Texas H.B. 2 Abortion Regulations Upheld (FindLaw’s U.S. Fifth Circuit Blog)

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