By Tony Mauro, From The National Law Journal

A federal appeals court on Tuesday upheld most provisions of a Texas law that imposes restrictions on abortion clinics that could shutter all but seven facilities throughout the state.

Ruling in Whole Woman’s Health v. Cole, the U.S. Court of Appeals for the Fifth Circuit said that for the most part, the law’s requirements do not impose an “undue burden” on women’s right to abortions.

The law, which passed in 2013, requires that doctors who perform abortions have admitting privileges at nearby hospitals, and that facilities meet the standard for “ambulatory surgical centers.”

The decision comes as a challenge to another Fifth Circuit ruling on clinics in Mississippi is before the U.S. Supreme Court, which could decide soon whether or not to grant review.

The Texas ruling brought swift criticism from abortion rights advocate Nancy Northup, president of the Center for Reproductive Rights. “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,” Northup said in a statement. “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.”

Charmaine Yoest, president of Americans United for Life, which supports the law, said “Texas has struck a decisive blow for women’s health and safety against a predatory abortion industry. No longer should women be abandoned to self-serving and false assurances from an industry that puts profits over people.”

The Texas statute, H.B. 2, has drawn nationwide attention ever since Democratic state senator Wendy Davis filibustered against its passage. Justice Ruth Bader Ginsburg drew criticism last year for specifically asserting that the Texas law “would put most clinics out of business.”

Related:

States Seek High Court Review of Abortion Restrictions

Heated Hearing in 5th Circuit Abortion Case

Full Fifth Circuit Won’t Hear Texas Abortion Case

Mississippi Abortion Law Blocked by Appeals Court

U.S. District Judge Lee Yeakel ruled last year against what he called the “brutally effective” abortion law.

But on appeal, the law has been largely resuscitated. An appeals panel in October upheld most of the law, and the decision on Tuesday did also, focusing mainly on the “ambulatory surgical center” requirement.

“In plain terms, H.B. 2 and its provisions may be applied throughout Texas,” the new decision declared, though it then carved out an exception for a Whole Woman’s Health clinic in McAllen. The ruling said women from San Antonio would have to travel 235 miles to obtain abortions in McAllen.

“We hold that, in the specific context of this as-applied challenge as to the McAllen facility, the 235-mile distance presented, combined with the district court’s findings, are sufficient to show that H.B. 2 has the ‘effect of placing a substantial obstacle in the path of a woman seeking an abortion,’ ” the ruling stated. The quote is from the 1992 Supreme Court decision Planned Parenthood of Southeastern Pennsylvania v. Casey, which established the “undue burden” standard for evaluating abortion restrictions.

Apart from the McAllen situation, however, the Fifth Circuit panel on Tuesday concluded “it is not clear from the record what fraction of women face an undue burden due to this combination of practical concerns and the effects of H.B. 2.”

The per curiam ruling Tuesday did not list a single author. The judges on the panel were Jennifer Elrod, Catharina Haynes and Edward Prado.

The ruling referred to the Mississippi abortion clinic case now before the high court, Currier v. Jackson Women’s Health Organization. In that case, the panel found that the law at issue would have the effect of closing down the only abortion clinic left in Mississippi. As a result, the panel in that case said the law could not be upheld, citing a rarely invoked 1938 Supreme Court decision State of Missouri ex rel. Gaines v. Canada.

Under that precedent, states are not allowed to “lean on” other states for the provision of constitutionally protected services. Mississippi had pointed to abortion clinics in nearby states that its residents could use.

But on Tuesday, the appeals panel said that because other Texas clinics will still be available, mainly in large cities, “unlike in Gaines and Jackson, the state has not completely shunted its responsibility onto other states.”

IMAGE: People protest in front of the Whole Women’s Health clinic Saturday, October 4, 2014 in McAllen, Texas. Photo: Joel Martinez/The Monitor/AP

For more on this story and to read the Fifth Circuit ruling in Whole Woman’s Health v. Cole go to: http://www.nationallawjournal.com/id=1202728822555/Strict-Regulation-of-Texas-Abortion-Clinics-Upheld#ixzz3cgLqkhmB: http://www.nationallawjournal.com/id=1202728822555/Strict-Regulation-of-Texas-Abortion-Clinics-Upheld#ixzz3cgLhJOVs