June 10, 2015 — A three-judge panel of the 5th U.S. Circuit Court of Appeals on Tuesday upheld some of the most-restrictive parts of a Texas antiabortion-rights law (HB 2), which could put about 50% of the remaining abortion clinics in the state at risk of closing, the New York Times reports (Fernandez/Eckholm, New York Times, 6/9).
The case centered on a requirement that abortion clinics in the state meet the same building standards as ambulatory surgical centers and whether abortion facilities in El Paso and McAllen should be exempt from a separate provision that requires abortion providers to have admitting privileges at nearby hospitals.
In October 2014, the Supreme Court reversed a ruling by the 5th Circuit that had lifted a hold against the ambulatory surgical center provision. Specifically, the high court's decision placed a hold on the ambulatory surgical centers provision and exempted abortion facilities in El Paso and McAllen from a provision that requires abortion providers to have admitting privileges at nearby hospitals (Women's Health Policy Report, 1/8).
In its decision, the 5th Circuit panel ruled that the state had a "legitimate" purpose in implementing the legislation. The judges also said the law, if permitted to take effect, would require 17% of women in the state to travel more than 150 miles to access abortion care, which it said was not a sufficiently "large fraction" of women that it would violate Supreme Court precedent. According to the Times, Supreme Court precedent holds that abortion restrictions only can be overturned if they impose an undue burden on "a large fraction of relevant cases" (New York Times, 6/9).
Specifically, the court upheld the law's ambulatory surgical centers provision and admitting privileges requirements except in the case of one clinic, Whole Woman's Health in McAllen, Texas. The panel wrote, "In plain terms, H.B. 2 and its provisions may be applied throughout Texas, except that Supreme Court precedent requires us to partially uphold the district court's injunction of the (ambulatory surgical center) requirement as applied to [WWH] and to uphold the district court's injunction of the admitting privileges requirement as applied to" one physician who works at WWH (Lachman, Huffington Post, 6/9).
The panel said it upheld the injunctions for now because the clinic's closure would result in women having to travel at least 235 miles to get to the nearest clinic, which the judges said would violate Supreme Court precedent by imposing an undue burden (New York Times, 6/9). However, the judges said the injunction would only remain in place "until such time as another licensed abortion facility becomes available to provide abortions at a location nearer to the Rio Grande Valley than San Antonio" (Huffington Post, 6/9). The decision lifted the injunction against the admitting privileges requirement as applied to Reproductive Services in El Paso, which is now closed. The court found that women in the area of the clinic do not face a "substantial obstacle" to obtaining abortions, as they are able to travel to New Mexico to receive the procedure (Ura, Texas Tribune, 6/9). The judges distinguished the ruling from their decision overturning an admitting privileges law (HB 1390) in Mississippi that would have closed the state's sole abortion clinic -- thereby requiring women to go out of state to obtain abortion care -- by noting that the Texas law would still allow several clinics in the state to remain open (Huffington Post, 6/9).
The ruling would take effect in about 22 days. However, according to the Times, the clinics and their attorneys intend to ask the 5th Circuit to stay the decision while they appeal to the Supreme Court. If the appeals court declines, the clinic attorneys plan to ask for an emergency stay from the Supreme Court. Such a stay would stop the ruling from going into effect while the high court considers whether to take the case.
According to Daniel Grossman, an investigator for the Texas Policy Evaluation Project, eight of Texas' remaining 18 clinics would close if the ruling goes into effect. However, it is unclear whether one of the 10 facilities expected to remain open -- the McAllen clinic -- would be able to stay open. WWH CEO Amy Hagstrom Miller said her organization was evaluating the decision to see if the clinic could continue operating (New York Times, 6/9).
Texas Gov. Greg Abbott (R) praised the court's decision (Huffington Post, 6/9).
Meanwhile, Center for Reproductive Rights President and CEO Nancy Northup said in a statement, "Not since before Roe v. Wade has a law or court decision had the potential to devastate access to reproductive health care on such a sweeping scale. Once again, women across the state of Texas face the near total elimination of safe and legal options for ending a pregnancy, and the denial of their constitutional rights" (New York Times, 6/9).
CRR attorney Stephanie Toti said if the provisions in HB 2 are "permitted to take effect, the impact will be devastating for women in Texas seeking access to abortion services" (Campoy, Wall Street Journal, 6/9).