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Texas abortion showdown has national implications

If Texas says all abortion clinics have to have marble floors, is that constitutional?
Celeste Mariuex, center, of Texas, demonstrates outside of the 5th U.S. Circuit Court of Appeals, on Jan. 7, 2015, in New Orleans.
Celeste Mariuex, center, of Texas, demonstrates outside of the 5th U.S. Circuit Court of Appeals, on Jan. 7, 2015, in New Orleans.

NEW ORLEANS -- It's not the first time Texas's omnibus abortion law has been before the famously conservative appeals court here. But on Wednesday, in an unusually lively hearing, there was something new: At least a recognition, even from a judge who previously voted for part of the law to go into effect, of the negative impact the law may have on women's lives and safety. 

"It seems like we’re going to be having women driving a long way and having a bleeding episode, in truly the middle of nowhere," said Judge Catharina Haynes, a George W. Bush appointee. "You and I know, in West Texas, you can go miles without a gas station. How does that protect that woman, this statute?" 

Haynes was talking about the impact of an abortion restriction she herself allowed to go into effect last March. 

RELATED: What you need to know about the Texas abortion case

At issue Wednesday was a law whose cumulative impact would close all but seven or eight of Texas's abortion clinics, and leave nearly a million women, or one out of six Texas women, more than 150 miles from the nearest legal clinic.

One provision being challenged now requires all abortions to take place in mini hospitals, known as ambulatory surgical centers. A separate part of the law requires abortion providers to get admitting privileges at local hospitals, which Haynes and another judge on Wednesday's panel, Jennifer Elrod, ruled constitutional last year. Elrod, Haynes, and Judge Edward Prado, who was mostly quiet at the argument, also have to decide whether the admitting privileges requirement is unconstitutional as applied to clinics in rural areas along the Texas-Mexico border, in El Paso and McAllen. 

Texas has said the laws make women safer by raising the standards for clinics and doctors, but the vast majority of medical experts say they are not only unnecessary, but make women less safe by making safe procedures more onerous and later. 

"I still haven't understood why 3,000 feet is any less sterile than 7,000 feet."'

Haynes questioned that claim too: "You can kind of find an expert to say anything," she said, adding, "Are we saying if you can find someone in the world to say we need marble floors in an abortion clinic, than that would be good enough to allow the Texas legislature to pass that?

Texas has also claimed that the ambulatory surgical requirements provide a more sterile environment for abortions. Haynes replied, "I still haven't understood why 3,000 feet is any less sterile than 7,000 feet."

Haynes also seemed to want to find a middle ground that is less sweeping that the district court opinion, which struck down the entire ambulatory surgical center requirement. Still, her comments are no guarantee of her vote. Elrod, who wrote the preliminary decision allowing the law to go into effect, didn't seem to waver on her position. Prado has a reputation for being moderate. 

Another open question is how the judges will consider the situation in West Texas. The El Paso clinic was forced to shut down because the provider didn't have hospital admitting privileges, and it won't be able to convert to an ambulatory surgical center, but just across the border in New Mexico, an abortion clinic remains open without the same onerous standards. The Fifth Circuit previously said that Mississippi couldn't force the closure of its only abortion clinic with an admitting privileges requirement, citing a Jim Crow-era ruling that states can't just send people across state lines for their constitutional rights. On the other hand, the El Paso clinic won't be the only clinic in Texas, so it may not apply.

"We are prepared to litigate this all the way to the Supreme Court if necessary."'

Still, the argument that women can just go to New Mexico puts the state of Texas in an awkward position, which wasn't lost on Judge Haynes, who pointed it out Wednesday.

"If these restrictions are so necessary, why send women across the border to New Mexico?" she said. In other words, if clinics without admitting privileges and ambulatory surgical requirements are so purportedly substandard, why is Texas shunting women to them? 

Jonathan Mitchell, arguing for Texas, replied that women have the right to travel anywhere they want. 

Today was the deadline to appeal the first-round case -- a challenge to the admitting privileges requirement in all cases -- to the Supreme Court, Center for Reproductive Rights attorney Stephanie Toti told msnbc Wednesday, and the clinics have decided not to do so. Instead, the current case, Whole Woman's Health v. Lakey, seems destined for the high court.

"We are prepared to litigate this all the way to the Supreme Court if necessary," Toti told msnbc. 

RELATED: How a recently reopened clinic helped one woman

In the clinics' strategic favor: That case would affect a greater number of clinics, includes facts on the ground on its impact from McAllen and El Paso, and the Supreme Court has already put the laws at issue temporarily on hold, something it refused to do in the first round of the case, Planned Parenthood v. Abbott. 

The courtroom was packed with activists on both sides of the abortion issue, including women who handed out folders full of material (including DVDs) about how they regretted their own abortions. One leaflet asked, "Wouldn't YOU care if 9/11 happened every day?" 

Paula Saldaña, an activist with the National Latina Institute for Reproductive Health, told msnbc the group had chartered a 15-seat van and driven sixteen hours from the Rio Grande Valley of Texas to attend the hearing, and rally outside after it. "We were talking on the bus about the privilege of getting to come here," she said, "and also thinking about the women who have to travel so far, through immigration checkpoints, to get to a clinic. If it was hard for us, imagine what it was for them."