October 3, 2014 — A federal appeals court panel on Thursday lifted a hold against a Texas antiabortion-rights law (HB 2), resulting in the closure of more than a dozen of the state's remaining abortion clinics and leaving many women in the state hundreds of miles away from the nearest abortion provider, the New York Times reports (Fernandez, New York Times, 10/2).
The ruling is temporary and could potentially be reversed as the underlying case moves forward, but the appeals court wrote that the state would likely prevail in a full appeal (Weber, AP/Sacramento Bee, 10/3). The state's abortion providers said they are considering their legal options, including asking the full 5th Circuit to hear the case or appealing the decision to the Supreme Court (New York Times, 10/2).
An HB 2 provision that was originally scheduled to take effect on Sept. 1 requires abortion clinics to meet the same standards at ambulatory surgical centers. U.S. District Court Judge Lee Yeakel in August barred enforcement of the provision, ruling it unconstitutional, but Texas Attorney General Greg Abbott (R) quickly appealed the ruling to the 5th U.S. Circuit Court of Appeals (Women's Health Policy Report, 9/15). Yeakel also blocked enforcement of a provision that requires abortion providers to have admitting privileges at hospitals within 30 miles of the facility where they practice.
According to the Times, 13 clinics were forced to close immediately to comply with the latest ruling, and there are no abortion clinics currently open to the west or south of San Antonio. All of the remaining providers are in Austin, Houston and two additional metropolitan areas. The Times notes that there were 41 abortion facilities in Texas -- a state with about 5.4 million women of reproductive age -- before HB 2 was enacted in 2013 (New York Times, 10/2).
The ruling also means that about 750,000 women of reproductive age, most of whom live in West Texas and near the Texas-Mexico border, are now more than 200 miles away from the nearest abortion facility, according to state abortion clinic lawyers (Eaton/McSwane, Austin American-Statesman, 10/2).
A three-judge panel of the 5th U.S. Circuit Court of Appeals sided with the state's attorneys in ruling that the ambulatory surgical centers provision and resulting clinic closures would not cause a "large fraction" of women in the state to face an unconstitutional burden on their abortion rights (New York Times, 10/2).
The judges based their ruling on the "large fraction" test they said was created by the 1992 Supreme Court ruling Planned Parenthood v. Casey (Sullivan, "Morning Mix," Washington Post, 10/3).
The abortion clinics had cited evidence that the enforcement of the provision would result in one in six Texas women living more than 150 miles from the nearest abortion facility. However, the panel wrote that such a number "is nowhere near a 'large fraction'" (New York Times, 10/2). The judges said that the Supreme Court justices in the Casey case had upheld an abortion restriction that left some women about six hours away from the nearest clinic ("Morning Mix," Washington Post, 10/3).
The judges also wrote that Yeakel's previous decision invalidating the admitting privileges rule throughout the state, even though the request was from one clinic in El Paso and another in McAllen, was "inappropriate because plaintiffs did not request that relief" and was "directly contrary to this circuit's precedent" (New York Times, 10/2).
Fifth Circuit Among Most Conservative
According to "Morning Mix," the ruling in the state's favor is not a surprise, as the 5th Circuit is considered to be among the most conservative of the federal appeals courts. The 5th Circuit previously sided with the state on the admitting privileges provision ("Morning Mix," Washington Post, 10/3).
In Thursday's ruling, one of the three judges, Judge Stephen Higginson, concurred with the majority ruling in part and dissented in part (New York Times, 10/2). Specifically, Higginson said he believed the El Paso and McAllen clinics should have been allowed to stay open ("Morning Mix," Washington Post, 10/3).
Center for Reproductive Rights President and CEO Nancy Northup said in a statement that the "ruling has gutted Texas women's constitutional rights and access to critical reproductive health care, and stands to make safe, legal abortion essentially disappear overnight" (New York Times, 10/2).
Jennifer Dalven, director of American Civil Liberties Union Reproductive Freedom Project, said, "This is a devastating day for Texas women."
In a statement from the state attorney general's office, spokesperson Lauren Bean said, "This 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."
Abbott, the attorney general, is also the Republican candidate for governor, facing state Sen. Wendy Davis (D), who drew national attention last year for her filibuster that helped stall HB2 from becoming law (Austin American-Statesman, 10/2).