Court Ignores Texas' Emergency Appeal of Ruling on Antiabortion Law; NYT Editorial Weighs In

October 30, 2013 — A federal appeals court did not immediately act on Texas Attorney General Greg Abbott's (R) emergency motion requesting permission for the state to enforce new abortion restrictions on Tuesday, the AP/Atlanta Journal-Constitution reports (Tomlinson, AP/Atlanta Journal-Constitution, 10/29).

On Monday, U.S. District Judge Lee Yeakel had issued a permanent injunction against a provision in a law (HB 2) that would have required abortion providers to have admitting privileges at nearby hospitals. However, Yeakel largely upheld a second mandate that requires that physicians administer medication abortion drugs in person, ruling that it only imposes an undue burden on women in certain instances. The lawsuit was brought by Planned Parenthood of Greater Texas Surgical Heath Services and 11 other advocacy groups (Women's Health Policy Report, 10/29).

The appeals court's inaction on Abbott's request means that Yeakel's ruling will remain in place for now. Meanwhile, another provision in the law that bans abortions after 20 weeks -- which plaintiffs in the original suit did not challenge -- took effect as scheduled on Tuesday (AP/Atlanta Journal-Constitution, 10/29).

Emergency Motion Details

Abbott in his filing asked the 5th U.S. Circuit Court of Appeals to overturn the ruling by the end of the day and hold a full hearing on the issue in January (Brooks, Reuters/Chicago Tribune, 10/29).

He argued that Yeakel had overstepped his authority and misapplied the law. "The district court took that extraordinary step without citing -- much less purporting to satisfy -- the constitutional standard," Abbott wrote (AP/Atlanta Journal-Constitution, 10/29).

Abbott also said the plaintiffs' claims regarding how the law would restrict abortion access were unsubstantiated and could not be proven unless the state was allowed to implement the measure. The plaintiffs have argued that the law would force more than a dozen clinics to close and cut off access to reproductive health services for an estimated 22,000 women (Chicago Tribune, 10/29).

According to the AP/Atlanta Journal-Constitution, the appeals court will not be able to hear the case until January at the earliest (AP/Atlanta Journal-Constitution, 10/29).

Plaintiffs' Response

Planned Parenthood and the law's other challengers said there is no need to immediately reinstate the provision, particularly because the state would not be harmed if the matter were resolved using the normal appeals process (Chicago Tribune, 10/29).

Janet Crepps -- an attorney for the Center for Reproductive Rights, which is representing Texas abortion clinics -- said that if "the injunction is lifted, literally thousands of women in Texas will no longer be able to access abortions." She added, "That's a huge harm, and there is no interest on behalf of the state that justifies denying the constitutional rights of all those women" (AP/Atlanta Journal-Constitution, 10/29).

NYT Editorial: Medication Abortion Restrictions 'Unacceptable'

According to a New York Times editorial, Yeakel's decision to largely uphold the "bogus 'safety' measure" that requires physicians to prescribe medication abortion according to outdated FDA guidance rather than current, "safer and more effective protocol ... will have the practical effect of leaving many women who might safely opt for medication abortion with only a surgical option."

The editorial states that Yeakel "recognized that the old protocol requires 'at least one additional visit to a clinic and allow[s] less control over the timing and convenience of the medically induced miscarriage,' but nevertheless he said it did not impose an 'undue burden' on abortion rights because surgical abortion is still available." However, the judge did grant "a small number of medication abortions to occur for health reasons between 50 and 63 days after a woman's last menstrual period, which is a longer time period than allowed under the F.D.A. rules," the editorial adds.

Yeakel's ruling "will not be the final word on the new statute," the editorial continues, noting that Texas has already appealed the ruling and that the Supreme Court justices "must now decide whether to proceed with their tentative plan to hear" an Oklahoma law that similarly restricts medication abortion. "If they do [decide to take the case], they should affirm the Oklahoma court's decision that prohibiting women and their doctors from using the latest forms of medication abortion is unacceptable," the editorial concludes (New York Times, 10/29).