By Dave Andrusko
Last night Texas abortion providers filed an emergency application with the U.S. Supreme Court, asking the High Court to reinstate an injunction granted by U.S. District Judge Lee Yeakel which had been stayed last week by a three-judge panel of the 5th Circuit Court of Appeals.
The result of that decision by a panel consisting of Judges Jennifer Elrod (who wrote the opinion), Jerry Smith, and Stephen Higginson, was to enable the state of Texas to immediately begin enforcing key provisions of its 2013 omnibus pro-life bill, HB 2, including that abortion clinics meet the same building standards as ambulatory surgical centers.
The appeal, filed by the Center for Reproductive Rights (CRR), was expected. HB 2 is the bill famously filibustered by pro-abortion state Senator Wendy Davis (D) who is now running for governor.
Justice Antonin Scalia, who oversees the Fifth Circuit, has the option of ruling on the application by himself, or he may direct the decision to the full court.
In a 55-page brief, CRR argued that the appeals panel “was demonstrably wrong” and if their October 2 ruling is not reversed, “women’s ability to exercise their constitutional right to obtain an abortion will be lost, and their lives will be permanently and profoundly altered.”
Added CRR president and CEO Nancy Northrup, “We look now to the U.S. Supreme Court to immediately reinstate the injunction, allow the clinics to reopen, and put an end to the irreparable and unjustifiable harm to Texas women that is happening right now.”
The appeals court panel said the central question it considered was “whether the state has shown a likelihood of success” in appealing Judge Yeakel’s ruling “regarding whether the ambulatory surgical center provision is unconstitutional. We conclude that it has.”
They rejected the argument that the law would affect a “large fraction” of women seeking abortions.
“We do not doubt that women in poverty face greater difficulties,” the panel stated. “However, to sustain a facial challenge, the Supreme Court and this circuit require plaintiffs to establish that the law itself imposes an undue burden on at least a large fraction of women. Plaintiffs have not done so here.”
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The panel cited data provided by Dr. Daniel Grossman, one of the plaintiffs’ experts, that “suggested that about one out of six Texas women seeking an abortion would live more than 150 miles from the nearest clinic if the surgical-center rules went into effect,” Fernandez reported.
“This is nowhere near a ‘large fraction,’ ” the panel wrote.
(The National Law Journal’s Tony Mauro noted, “The panel made an exception for the El Paso area, allowing the injunction against the ambulatory surgical center requirement remain in place because of the long distances women would have to travel if clinics in that area close.”)
As CRR noted in a press release, this is the law firm’s second challenge to HB 2. They’ve already lost once—a lawsuit against the requirement that abortion clinics have an abortionist with admitting privileges with a local hospital for when there are the inevitable abortion complications.
As NRL News Today reported last March, a different three-judge panel of the 5th Circuit unanimously upheld that provision which had been challenged by the CRR, the Planned Parenthood Federation of America, the American Civil Liberties Union, and several Texas abortion clinics. CRR asked the full appeals court panel to rehear the case.