Lawyers defending Texas’s efforts to shut down most of the abortion clinics in that state earned a tersely worded rebuke from a conservative federal appeals court on Tuesday, in a brief order that will allow many clinics in that state to remain open for at least another week or two.
The order was the United States Court of Appeals for the Fifth Circuit’s first response to a federal trial judge’s decision on Friday halting parts of Texas’s anti-abortion law. Under Judge Lee Yeakel’s Friday order, existing clinics within Texas are not required to comply with new, expensive architectural requirements imposed by the law, and several clinics in remote parts of the state are also not required to comply with a credentialing rule for doctors that renders many physicians ineligible to perform abortions. The Fifth Circuit, which is one of the most conservative federal courts in the country, is likely to reverse Yeakel’s decision — eventually. For the time being, however, Yeakel’s opinion allowing many clinics in Texas to remain open is still in effect.
Tuesday’s order from the Fifth Circuit probably says more about the court’s exasperation with Texas’s attorneys than it does about how its judges will eventually rule on the Texas law. Indeed, the bulk of the order is devoted to lecturing Texas’s lawyers for being slow to file and for exceeding a page limit mandated by the court’s rules:
On Friday August 29, the district court entered a judgment enjoining much of the challenged statute scheduled to go into effect at 12:01 a.m. Monday September 1. . . . The appellants waited until 11:59 p.m. on Sunday August 31 to file the stay motion; a corrected version was sent at 12:08 a.m. on Monday September 1. This did not allow time for a response, or for the court adequately to consider the motion, before the scheduled effective date, though the appellants claim irreparable harm from the statute’s not being enforced. Moreover, the tardy motion was well in excess of the number of pages that are allowed.
So, let that being a warning to lawyers in the Fifth Circuit. If you want to tell the court that you are facing some imminent and incurable harm unless the court gives you exactly what you want within a very tight deadline, you might want to give them more than two whole minutes to consider your case. Notably, the Fifth Circuit’s order wasn’t even signed by a panel of judges. It was signed by the court’s clerk, in a possible sign that the court viewed the state’s tardy filing as so unworthy of swift consideration that it could initially be handled as a purely administrative matter.
Rather than granting immediate relief to Texas, the Fifth Circuit ordered attorneys challenging the anti-abortion law to respond to Texas by September 8. Oral arguments will take place on Friday the 12th.
So the practical effect of this order is that the clinics kept open by Yeakel’s order will likely be able to remain open until at least the 12th. It is unlikely, however, that they will be able to remain open forever. The Fifth Circuit remains a very conservative court, and even if the panel assigned to consider Yeakel’s order is sympathetic to his reasoning, that panel’s decision could ultimately be overruled by the full court.