5th Circuit upholds challenged portions of Texas’ pro-life H.B. 2

 

By Dave Andrusko

Judge Edith Jones

Judge Edith Jones

A three-judge panel of the U.S. Court of Appeals for the 5th Circuit Thursday unanimously upheld provisions of Texas’ H.B. 2 that had been challenged by the Planned Parenthood Federation of America, the American Civil Liberties Union, the Center for Reproductive Rights, and several Texas abortion clinics.

At issue was a requirement that abortionists have admitting privileges to a hospital located within 30 miles of the abortion clinic and how far into pregnancy chemical abortifacients can be administered.

Other provisions of the law went into effect without challenge (the Pain-Capable Unborn Child Protection Act), or do not take effect until September (a requirement that abortions clinics meet the standards of ambulatory surgical centers). The latter could well be challenged by pro-abortionists.

Judge Catharina Haynes

Judge Catharina Haynes

As NRL News Today reported last October (nrlc.cc/1h3hPmq and nrlc.cc/1h3hwrV), Austin-based U.S. District Judge Lee Yeakel declared that “the act’s admitting-privileges provision is without a rational basis and places a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”

HB 2 also requires that the abortionist be in the same room as the woman receiving the chemical abortifacients (which is not the case with so-called ‘web-cam” abortions) and that abortionists follow the protocol approved by the FDA for the use of the two-drug “RU-486” abortion technique.

Yeakel held that it was not an “undue burden” on a woman’s right to abort for Texas to require that abortionists use the FDA protocol that limits the technique to the first 49 days [seven weeks], but would be in special cases where the pregnancy fell between 50-63 days [eight to nine weeks].

Three days after Yeakel issued his ruling, a different 5th Circuit panel allowed Texas to enforce the law while it was being appealed. Plaintiffs quickly asked the Supreme Court for a stay, but on November 28 the Supreme Court Supreme Court voted not to block (“stay”) the appeals court’s action allowing the law to be enforced.

Judge Jennifer Walker Elrod

Judge Jennifer Walker Elrod

In their 34-page opinion, Judges Edith Jones, Catharina Haynes, and Jennifer Walker Elrod carefully outlined why the provisions are not an “undue burden” on the right to abortion. Their explanations were typically reduced to a sentence or two in most news stories which missed altogether how the judges came to the conclusions they did.

For example, you would get the impression that there are virtually never any complications from an abortion. Jones, who wrote the opinion, noted that “Planned Parenthood conceded that at least 210 women in Texas annually must be hospitalized after seeking an abortion.”

“Witnesses on both sides further testified that some of the women who are hospitalized after an abortion have complications that require an OB/GYN specialist’s treatment,” Jones added. “Against Planned Parenthood’s claims that these women can be adequately treated without the admitting-privileges requirement, the state showed that many hospitals lack an Ob/Gyn on call for emergencies.”

Continuity of care was one of the key reasons the law intends that the abortionist be able to go with the woman to the hospital if there is a complication. Testimony pointed to studies that concluded that “80 percent of serious medical errors involve miscommunication between caregivers when patients are transferred or handed-off.”

Jones noted that the state of Texas had articulated a rational basis for the law and that the plaintiffs had not attacked the State’s purposes “at all.” But, she explained, plaintiffs could still prevail “if the effect of the law substantially burdened women’s access to abortions in Texas.” The three-judge panel found the law did not do so.

“Although some clinics may be required to shut their doors there is no showing whatsoever that a woman will lack reasonable access to a clinic in Texas,” Jones wrote.

For example, “In a number of areas in Texas, physicians who are performing abortion already have admitting privileges.” With respect to the difficulty one abortion clinic owner said she had in recruiting new abortionists, Jones noted that “all told” only one of the physicians she had contacted “declined to provide abortions in Texas as a consequence of H.R. 2.”

Jones concluded

“The evidence presented to the district court [to Judge Yeakel] demonstrates that if the admitting-privileges regulation burdens abortion access by diminishing the number of doctors who will perform abortions and requiring women to travel farther, the burden does not fall on the vast majority of Texas women seeking abortions. Put otherwise, the regulation will not affect a significant (much less ‘large’) fraction of such women [women seeking abortions in a given area of Texas], and it imposes on other women in Texas less of a burden than the waiting-period provisions upheld” in the Supreme Court’s “Casey” decision.

The panel also reversed Judge Yeakel, who disagreed with H.B. 2’s requirement that chemical abortions (“medication abortions”) be limited to the first seven weeks [49 days] of pregnancy.

H.B. 2 “merely shortens the window during which a woman may elect to have a medication abortion, leaving open the possibility for any woman to have a medication abortion up to forty-nine days LMP (Last Menstrual Period],” Jones explained.

Planned Parenthood’s Cecile Richards told reporters, “This is a terrible court ruling that will severely limit a woman’s access to safe and legal abortion in Texas.”

By contrast, “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,” said Texas Attorney General Greg Abbott, whose office defended the law in court.