November 1, 2013 — The 5th U.S. Circuit Court of Appeals on Thursday granted an emergency stay against a federal judge's ruling that struck down part of a Texas antiabortion law (HB 2) that requires physicians who perform abortions to have admitting privileges at nearby hospitals, the Texas Tribune reports. The ruling allows the state to immediately enforce the law while the appeals process continues (Aaronson, Texas Tribune, 10/31).
The appeals court judges also partially lifted the federal judge's injunction against some aspects of a provision in the law that restricts medication abortions (Saleh Rauf, Houston Chronicle, 10/31).
In September, Planned Parenthood of Greater Texas Surgical Health Services and 11 other advocacy groups filed a lawsuit challenging the admitting privileges requirement and medication abortion restrictions. Specifically, the provisions require that physicians who perform abortions have admitting privileges at a hospital within 30 miles and that physicians administer medication abortion drugs in person.
On Monday, U.S. District Judge Lee Yeakel issued a permanent injunction against the admitting privileges requirement. However, he largely upheld the medication abortion provision, ruling that it only imposes an undue burden on women if a physician determines that the procedure is necessary for "the preservation of [her] life or health."
The state immediately appealed to the 5th Circuit (Women's Health Policy Report, 10/29).
Meanwhile, other provisions in the law remain unchallenged: a 20-week abortion ban that took effect on Oct. 29, and a requirement that clinics meet the same standards as ambulatory surgical centers, which is scheduled to take effect in 2014.
Admitting Privileges Opinion
In a unanimous decision, the three-judge appeals panel wrote that "there is a substantial likelihood that the state will prevail in its argument that Planned Parenthood failed to establish" that the admitting privileges provision places "an undue burden on women seeking abortions or that the ... requirement creates a substantial obstacle in the path of a woman seeking an abortion."
Janet Crepps, the plaintiffs' attorney in the case, had argued in response to the state's request for a stay that allowing the "requirement to go into effect, even for a few weeks or months, would decimate the availability of abortion services in the state."
The state had argued in its appeal that Yeakel took an "extraordinary step" by declaring that the provision imposed an undue burden on women because 90% of patients would still be able to receive an abortion within 100 miles of where they live. The state said the ruling was "so aggressive that it ignores those concessions and sweeps more broadly than even the plaintiffs were willing to argue" (Texas Tribune, 10/31).
The judges also wrote that Yeakel's argument that the provision has no "rational relationship to improved patient care" was just "one step removed from repudiating the longstanding recognition by the Supreme Court that a State may constitutionally require that only a physician may perform an abortion" (Houston Chronicle, 10/31).
They added that while the requirement might "increase the cost of accessing an abortion provider and decrease the number of physicians available to perform abortions," 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" (Eckholm, New York Times, 10/31).
Medication Abortion Opinion
The judges lifted Yeakel's partial injunction against the medication abortion provision in most situations but allowed it to continue "to apply pending appeal with respect to a mother who is 50 to 63 days from her last menstrual period if the physician ... has exercised appropriate medical judgment and determined that, due to a physical abnormality or preexisting condition of the mother, a surgical abortion is not a safe and medically sound option" (Houston Chronicle, 10/31).
The judges added that the state "ha[d] made a strong showing of likelihood of success on the merits, at least in part, as to its appeal of the injunction pertaining to medication abortion" (Texas Tribune, 10/31).
Impact on Abortion Access
Planned Parenthood Federation of America spokesperson Amanda Harrington added that "there are currently 36 health centers in Texas that provide abortions, and one-third will be forced to stop those services tomorrow." She said that four of the state's 13 Planned Parenthood clinics have been unable to find doctors with admitting privileges and will halt abortion immediately while continuing to provide other reproductive health services. However, she noted that some private clinics in West and South Texas might shut down entirely (New York Times, 10/31).
State, Plaintiffs Respond
Texas Attorney General Greg Abbott (R) said, "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."
Texas Gov. Rick Perry (R) said the ruling "affirms our right to protect both the unborn and the health of the women of Texas." He added, "We will continue doing everything we can to protect a culture of life."
PPFA President Cecile Richards said that the "fight is far from over," adding that the law "clearly violates Texas women's constitutional rights by drastically reducing access to safe and legal abortion statewide." She continued, "If Texans showed America one thing during the historic protests against this law this summer, we demonstrated that Texans value women's health -- and that is why we will take every step we can to protect the health of Texas women in the wake of this ruling" (Texas Tribune, 10/31).
Brigitte Amiri, a senior staff attorney with the American Civil Liberties Union's Reproductive Freedom Project, said, "We will continue to try to do anything we can to ensure that women in Texas can get the health care they need." Amiri said that the plaintiffs are considering their legal options, including an appeal to the Supreme Court (Eilperin, "Post Politics," Washington Post, 10/31).