Outside the Beltway

Appeals Court Allows Texas Abortion Law To Go Forward

Doug Mataconis · Friday, November 1, 2013 · 7 comments

It was just a few days ago that a Federal District Court Judge in Texas placed a hold on certain portions of the Texas abortion law that went into effect today. Late yesterday, a Federal Appeals Court ruled that the provisions in question should be allowed to go into effect while the case goes forward:

Only three days after a federal judge blocked a new Texas law that threatened to shut down many of the state’s abortion clinics, the United States Court of Appeals for the Fifth Circuit, in New Orleans, reversed the decision, saying the rule should take effect while the case is argued in the months to come.

Abortion clinic owners and women’s health advocates said the decision would have catastrophic effects because as many as 13 of the 36 clinics providing abortions in the state would have to stop doing so immediately, forcing women in large swaths of Texas to travel several hours on at least two days to obtain abortions.

The clinics forced to halt abortions have been unable to satisfy a new requirement, part of a broader anti-abortion law adopted in July, that doctors performing the procedure must have formal admitting privileges at a hospital within 30 miles of the clinic.

Greg Abbott, the state attorney general and a Republican candidate for governor next year, filed an emergency appeal to the three-judge circuit court on Monday asking it to overrule the lower court. He said in a statement Thursday, “This unanimous decision is a vindication of the careful deliberation by the Texas Legislature to craft a law to protect the health and safety of Texas women.”

Gov. Rick Perry, who has said he hopes to abolish abortion in Texas, said in a statement, “Today’s decision affirms our right to protect both the unborn and the health of the women of Texas.”

In blocking the requirement on Monday, Judge Lee Yeakel of United States District Court in Austin accepted the argument of the clinics, and many doctors and national medical associations, that requiring admitting privileges had no bearing on safety because in the rare event of an emergency, patients will be rushed to the nearest hospital and treated the same way regardless.

The requirement is likely to be unconstitutional, he declared, because it is “without a rational basis and places a substantial obstacle in the path of a woman seeking an abortion.”

But the appeals panel found just the opposite: that the rule is likely to be constitutional because it serves a legitimate state interest in regulating doctors and does not impose an “undue burden” on the right to abortion.

The appeals court said that the admitting privilege rule might “increase the cost of accessing an abortion provider and decrease the number of physicians available to perform abortions.”

But it cited a Supreme Court statement in an earlier abortion case that if a regulation serves a valid purpose, the fact that it has “the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it.”

In Texas and other states, especially in smaller cities and rural areas, abortion clinics often use visiting doctors who may be highly qualified but do not meet the rules of local hospitals for admitting privileges. Many hospitals, for example, grant privileges only to doctors who admit a certain number of patients a year, while emergency hospitalizations after abortions are rare.

Some hospitals are unwilling to make formal arrangements with abortion providers because of religious reasons or because they fear protests.

The challenge to the admitting privilege rule was brought by the American Civil Liberties Union, the Center for Reproductive Rights, Planned Parenthood and other abortion clinic owners in Texas. They were apparently surprised by the sudden turn and warned of dire consequences.

“We believe there are currently 36 health centers in Texas that provide abortions, and one-third will be forced to stop those services tomorrow,” Amanda Harrington, a spokeswoman for the Planned Parenthood Federation of America, said on Thursday.

I haven’t been able to read the opinion so it’s unclear what the Court’s reasoning here is, but this is clearly a setback for opponents of the law who had hoped that they’d be able to continue with business as usual until the case had been decided on its merits. As it stands, we’ll likely have to wait until some point in 2014 before there’s a final ruling on this issue at the District Court level.