Appeals court silent on Texas Abortion Clinic Law
By Tony Mauro From The National Law Journal
A Texas law imposing new regulations on abortion clinics fell into Labor Day limbo Monday after a federal appeals court made no response to an urgent plea from the state to let the statute take effect.
The U.S. Court of Appeals for the Fifth Circuit had taken no action as of 6 p.m. Central Time on the request by Attorney General Greg Abbott to delay enforcement of a Friday district court ruling that struck down parts of the clinic law. The law was to have taken effect Monday.
The appeals court apparently took Abbott up on an alternative suggestion to take until close of business on Friday, Sept. 5, to act on the stay request.
The silence of the New Orleans appeals court means that, for now, clinics across Texas won’t have to meet the law’s requirement to upgrade their facilities to meet the standards for ambulatory surgical centers.
That mandate is “blocked for all clinics in the state,” said Jennifer Miller, spokeswoman for the Center for Reproductive Rights, which represents clinics and doctors challenging the law. Less certain is the status of another provision requiring that clinic doctors obtain admitting privileges in nearby hospitals.
The state’s motion challenged findings by U.S. District Judge Lee Yeakel about the impact and motivations for the restrictions. Yeakel called the law a “brutally effective” set of regulations that would force the closing of all but seven or eight clinics in Texas.
But Abbott’s motion, signed by Texas solicitor general Jonathan Mitchell, asserted that Yeakel failed to show that a “large fraction” of Texas women would be burdened by the law. He also said there was “no evidence whatsoever” supporting Yeakel’s finding that the Texas Legislature passed the law in 2013 with the purpose of imposing an undue burden on Texas women. Yeakel’s ruling is likely to be overturned, Abbott asserted.
Also on Sunday, a federal judge in Louisiana halted enforcement of a law that required abortion clinic doctors in that state to have admitting privileges in local hospitals. Judge John deGravelles of the Middle District of Louisiana ruled that doctors could continue to practice while they apply for privileges.
In the Texas case, Whole Women’s Health v. Lakey, Yeakel, a judge in the Austin division of the U.S. District Court for the Western District of Texas, issued his ruling after a trial that began on Aug. 4.
Yeakel said the law “would operate for a significant number of women in Texas just as drastically as a complete ban on abortion.” Only a handful of clinics could meet the new standard in Texas, which Yeakel noted has 5.4 million women of reproductive age. Abbott’s motion asserted that a “significant number” is not enough to show undue burden on women in the state.
Yeakel’s ruling invoked the U.S. Supreme Court’s 1992 ruling in Planned Parenthood v. Casey, which established the “undue burden” test for deciding whether laws or regulations restricting abortions are constitutional.
The law was “intended to close existing licensed abortion clinics,” Yeakel said, in spite of claims by the state that the law was intended to improve the health and safety of women seeking abortions in Texas.
Before the law was passed in 2013, more than 40 abortion clinics operated in Texas. After a part of the law requiring that clinic physicians obtain hospital admitting privileges took effect last October, the number dropped by almost half.
The Fifth Circuit had upheld that provision in earlier litigation, but Yeakel’s ruling questioned it again. Yeakel said disadvantaged women would be affected the most by both restrictions taken together, pointing to El Paso and the Rio Grande Valley as areas from which women would have to travel up to 500 miles or more for abortions. He struck down the admitting privileges provision as it applied to clinics in that area.
Debate over passage of the law in 2013 made national headlines when state Sen. Wendy Davis sought to block the legislation with an 11th-hour filibuster. Davis is now the Democratic candidate for governor. Abbott, who is defending the law in court, is her Republican rival.
Federal judges have recently struck down other laws restricting abortions in Alabama and Mississippi.
IMAGE: The Southwestern Women’s Surgery Center is seen in Dallas on Friday, Nov. 1, 2013 following a federal appeals court ruling that allowed most of the state’s new abortion restrictions to take effect. Southwestern is licensed as a surgical center, but a federal judge on August 29 said the number of clinics offering abortion service in Texas could drop from more than 40 in 2013 to seven or eight as a result of the law.
AP / Rex C. Curry
