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By Laurel Brubaker Calkins, Bloomberg Politics (TNS)

Texas abortion clinics that persuaded a judge to throw out restrictions may face long odds in convincing a conservative U.S. appeals court to permanently block laws that would leave the second-largest U.S. state with only seven facilities, compared with 41 two years ago.

The clinics this week will go before three judges appointed by Republican President George W. Bush, asking them to uphold the ruling that the law violates women’s constitutional right to an abortion. The U.S. Court of Appeals in New Orleans has repeatedly ruled against the clinics in earlier battles.

“The New Orleans court is widely and correctly viewed as one of the most conservative appellate courts in the country,” Brian Wice, a Houston appellate attorney, said in a phone interview. “If this were a playoff game, the clinics should be considered a two-touchdown underdog.”

Texas contends the laws protect women’s health, and is set to argue Jan. 7 in New Orleans that the opponents are overstating the limits on access they impose.

The state’s campaign to limit abortions by tightly regulating clinics and their doctors is playing out against a shifting landscape of abortion statutes nationwide. State legislatures have adopted more than 200 restrictions since a Republican-led push began in 2011. Federal judges have so far rolled back some limits in eight of the 10 states that have faced court challenges. Those rulings have emphasized that women have a guaranteed right to safely end unwanted early pregnancies under Roe v. Wade, the 1973 U.S. Supreme Court decision.

Texas’s Republican-controlled legislature in 2013 passed some of the nation’s strictest abortion limits at the urging of Gov. Rick Perry, a potential Republican presidential candidate next year. Doctors were required to have admitting privileges at hospitals within 30 miles of their clinics, which in turn were required to meet the same building codes as outpatient surgical centers. More than half of the state’s 41 licensed clinics closed on the doctors’ hospital-affiliation rule.

Before the Supreme Court called a temporary timeout last year to let the Texas legal challenge proceed, clinics that provided about 80 percent of the state’s abortions were on the verge of closing because they couldn’t comply with all of the new rules, according to clinic supporters.

If the law is allowed to take full effect, more than one-sixth of all women of reproductive age will live at least 150 miles from the nearest Texas abortion provider. With the seven remaining clinics clustered in the eastern and central parts of the state, abortions will become unavailable in vast stretches of west and south Texas — an area larger than many states.

“Texas now seeks to do indirectly what, for 40 years, it has been unable to do directly: eliminate millions of women’s access to safe and legal abortion services,” lawyers for the women’s rights groups said in court filings.

Texas’s abortion fight has bounced between federal courts in Austin, New Orleans and Washington for almost two years. In the latest round, the New Orleans court rebuked the Austin judge who blocked the law for ignoring its earlier rulings. He extended his decision to cover all abortion clinics in the state, in contrast with abortion rights supporters’ narrower request that he prevent the rules from closing the last two clinics in south and west Texas.

The high court stepped in to maintain the status quo in October, blocking the appellate court’s order that would’ve let Texas temporarily close the clinics while fighting to make the restrictions permanent. At least four high-court justices will likely want to review whatever decision the New Orleans court ultimately makes, U.S. Supreme Court Justice Stephen Breyer wrote in a Nov. 19, 2013, dissent.

“This is a case with a lot of heat, a lot of light and a lot of eyes on it,” Wice said. “The New Orleans court knows there are nine people in Washington who will be grading their papers on this.”

The Supreme Court hasn’t ruled on reproductive rights since 2007, when it upheld a ban on late-term abortions. The court ruled in 1992 that states can’t place an “undue burden” on a woman’s right to end a pregnancy before the fetus would be able to live outside the womb.

The clinics are focused on two main arguments to present at the Jan. 7 hearing: First, if too many facilities close, Texas women will lose their constitutionally protected right to abortion because politicians objected to their choices. Second, Texas’s restrictions do nothing to improve patient health while drastically limiting access to the procedure.

If all the restrictions are enforced, “the remaining abortion providers would have to increase their collective capacity by 400 percent to meet the statewide demand for abortion services, but the admitting privilege requirement would limit their ability to hire new physicians,” women’s health advocates said in a November filing.

“Texas’s clinic shutdown law has devastated women’s access to basic health care over the past year,” Stephanie Toti, lead lawyer for the Center for Reproductive Rights, which has challenged the law, said in an e-mail. She said the group is “hopeful” the New Orleans judges will be guided by the Supreme Court’s intervention to protect “women’s constitutional right to safe and legal abortion.”

Texas will counter with two primary arguments of its own: States have the right to regulate the medical profession to protect patient health however they see fit, and the new abortion restrictions won’t place an unconstitutional undue burden on the majority of Texas women.

The state’s lawyers, led by Texas Attorney General Greg Abbott, a Republican who will be sworn in as governor this month, said 80 to 90 percent of abortion patients still live within what the New Orleans court has previously ruled is an acceptable driving range from an abortion provider.

“The vast majority of Texas abortion patients live within 150-mile driving distances of Austin, Dallas, Fort Worth, Houston or San Antonio_and each of these cities will host at least one” clinic that meets the new rules, the state said in a December filing. Women in El Paso, in far west Texas, can drive one mile across the border to a New Mexico abortion clinic if they prefer to skip the 1,100-mile round trip to providers in San Antonio, Texas’s lawyers said.

“If a law does not impose a substantial obstacle in the path of abortion patients, then it does not matter for ‘undue burden’ purposes whether the medical justification for the law is strong, feeble or non-existent,” Texas said in court papers.

The clinics have a difficult task to sway the three-judge panel assigned to their challenge, as two of the three supported Texas in prior rounds of the abortion fight.

U.S. Circuit Judges Jennifer Walker Elrod and Catharina Haynes participated in a separate three-judge panel that in March unanimously reinstated Texas’s admitting-privilege rule.

Elrod also sat on a different panel that told Texas it would probably succeed in this round of the challenge, which looks at the combined effect of the restrictions, when the state asked permission to enforce the new limits while it appeals. That was the order the Supreme Court put on hold.

Lawyers who’ve practiced extensively before the New Orleans court say the clinics might still win — if the judges ignore the partisan political agenda underlying the debate and rule strictly on the constitutional issue.

U.S. Circuit Judge Edward Prado, the panel’s third member, “isn’t one with a big agenda to grind, and I’ve known him for 40 years,” Sidney Powell, a Dallas appellate specialist, said in a telephone interview.

Although voting to support the clinics would require Elrod to reverse her previous rulings in Texas’s favor, she will do that if the case calls for it, Powell said.

“Given the panel, this could go either way,” Powell said. “Likely this is just a whistle-stop on the way to the Supreme Court, either way it turns out.”

Photo: Bill & Heather Jones via Flickr


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Former President Donald Trump, left, and former White House counsel Pat Cipollone

On Wednesday evening the House Select Committee investigating the Trump coup plot issued a subpoena to former White House counsel Pat Cipollone, following blockbuster testimony from former White House aide Cassidy Hutchinson, who said the lawyer had warned of potential criminal activity by former President Donald Trump and his aides.

The committee summons to Cipollone followed long negotiations over his possible appearance and increasing pressure on him to come forward as Hutchinson did. Committee members expect the former counsel’s testimony to advance their investigation, owing to his knowledge of the former president's actions before, during and after the January 6, 2021 attack on the U.S. Capitol.

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Mark Meadows

Donald Trump’s White House Chief of Staff Mark Meadows wanted a presidential pardon. He had facilitated key stages of Trump’s attempted 2020 coup, linking the insurrectionists to the highest reaches of the White House and Congress.

But ultimately, Meadows failed to deliver what Trump most wanted, which was convincing others in government to overturn the 2020 election. And then his subordinates, White House security staff, thwarted Trump’s plan to march with a mob into the Capitol.

Meadows’ role has become clearer with each January 6 hearing. Earlier hearings traced how his attempted Justice Department takeover failed. The fake Electoral College slates that Meadows had pushed were not accepted by Congress. The calls by Trump to state officials that he had orchestrated to “find votes” did not work. Nor could Meadows convince Vice-President Mike Pence to ignore the official Electoral College results and count pro-Trump forgeries.

And as January 6 approached and the insurrection began, new and riveting details emerged about Meadow’s pivotal role at the eye of this storm, according to testimony on Tuesday by his top White House aide, Cassidy Hutchinson.

Meadows had been repeatedly told that threats of violence were real. Yet he repeatedly ignored calls from the Secret Service, Capitol police, White House lawyers and military chiefs to protect the Capitol, Hutchinson told the committee under oath. And then Meadows, or, at least White House staff under him, failed Trump a final time – although in a surprising way.

After Trump told supporters at a January 6 rally that he would walk with them to the Capitol, Meadows’ staff, which oversaw Trump’s transportation, refused to drive him there. Trump was furious. He grabbed at the limousine’s steering wheel. He assaulted the Secret Service deputy, who was in the car, and had told Trump that it was not safe to go, Hutchinson testified.

“He said, ‘I’m the f-ing president. Take me up to the Capitol now,’” she said, describing what was told to her a short while later by those in the limousine. And Trump blamed Meadows.

“Later in the day, it had been relayed to me via Mark that the president wasn’t happy that Bobby [Engel, the driver] didn’t pull it off for him, and that Mark didn’t work hard enough to get the movement on the books [Trump’s schedule].”

Hutchinson’s testimony was the latest revelations to emerge from hearings that have traced in great detail how Trump and his allies plotted and intended to overturn the election. Her eye-witness account provided an unprecedented view of a raging president.

Hutchinson’s testimony was compared to John Dean, the star witness of the Watergate hearings a half-century ago that led to the resignation of President Richard Nixon for his aides’ efforts to spy on and smear Democrats during the 1972 presidential campaign.

“She IS the John Dean of the hearings,” tweeted the Brooking Institution’s Norman Eisen, who has written legal analyses on prosecuting Trump. “Trump fighting with his security, throwing plates at the wall, but above all the WH knowing that violence was coming on 1/6. The plates & the fighting are not crimes, but they will color the prosecution devastatingly.”

Meadows’ presence has hovered over the coup plot and insurrection. Though he has refused to testify before the January 6 committee, his pivotal role increasingly has come into view.

Under oath, Hutchinson described links between Meadows and communication channels to the armed mob that had assembled. She was backstage at the Trump’s midday January 6 rally and described Trump’s anger that the crowd was not big enough. The Secret Service told him that many people were armed and did not want to go through security and give up their weapons.

Trump, she recounted, said “something to the effect of, ‘I don’t f-ing care that they have weapons. They’re not here to hurt me. Take the mags [metal detectors] away. Let the people in. They can march to the Capitol from here.

As the day progressed and the Capitol was breached, Hutchison described the scene at the White House from her cubicle outside the Oval Office. She repeatedly went into Meadows’ office, where he had isolated himself. When Secret Service officials urged her to get Meadows to urge Trump to tell his supporters to stand down and leave, he sat listless.

“He [Meadows] needs to snap out of it,” she said that she told others who pressed her to get Meadows to act. Later, she heard Meadows repeatedly tell other White House officials that Trump “doesn’t think they [insurrectionists] are doing anything wrong.” Trump said Pence deserved to be hung as a traitor, she said.

Immediately after January 6, Hutchinson said that Trump’s cabinet discussed invoking the 25th Amendment to remove a sitting president but did not do so. She also said that Meadows sought a pardon for his January 6-related actions.

Today, Meadows is championing many of the same election falsehoods that he pushed for Trump as a senior partner at the Conservative Partnership Institute (CPI), a right-wing think tank whose 2021 annual report boasts of “changing the way conservatives fight.”

His colleagues include Cleta Mitchell, a lawyer who pushed for Trump to use every means to overturn the election and leads CPI’s “election integrity network,” and other Republicans who have been attacking elections as illegitimate where their candidates lose.

Hutchinson’s testimony may impede Meadows’ future political role, as it exposes him to possible criminal prosecution. But the election-denying movement that he nurtured has not gone away. CPI said it is targeting elections in national battleground states for 2022’s midterms, including Arizona, Georgia, Florida, Michigan, and Pennsylvania.

Trump did not give Meadows a pardon. But in July 2021, Trump’s “Save America” PAC gave CPI $1 million.

Steven Rosenfeld is the editor and chief correspondent of Voting Booth, a project of the Independent Media Institute. He has reported for National Public Radio, Marketplace, and Christian Science Monitor Radio, as well as a wide range of progressive publications including Salon, AlterNet, The American Prospect, and many others.

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