Abortion clinics and doctors in Texas asked the Fifth Circuit Court on Wednesday to put its new ruling on hold, while an appeal to the Supreme Court is pursued. The stay application can be read here.
SCOTUS is expected to act soon on the constitutionality of abortion regulations that would mean women must leave the state to have the procedure. However, a federal appeals court ruled on Tuesday that such an alternative is not necessarily unconstitutional. That ruling in a Texas case was issued by the U.S. Court of Appeals for the Fifth Circuit — the same court that made the different Mississippi decision that is now awaiting the Justices’ response.
The new decision on Texas’s 2013 abortion law was a final ruling mostly upholding two key provisions of that law, and it differed in significant respects from the way the Supreme Court reacted to the same measure, in a temporary order on the Texas law last October. The effect of the appeals court’s new decision seems likely to keep some Texas clinics that are now closed from reopening, and make abortions available at probably no more than nine clinics statewide — compared to about forty before the law was passed.
One thing about the Texas law is similar to that of the Mississippi case that the Supreme Court is scheduled to consider at its private conference on Thursday. That requires doctors who perform abortions at clinics to have admitting privileges at a nearby hospital in case of emergency or a need for back-up medical treatment.
People who operate these clinics in both Mississippi and Teas assure that abortion is safe without requiring admittance to a hospital. Requiring access to a hospital violates women’s abortion rights. In Mississippi, if the law goes into effect, the last remaining abortion clinic will close.
The other requirement in the Texas case, but not in the Mississippi lawsuit, compels clinics performing abortions to be outfitted as “ambulatory surgical centers,” meaning upgrading to hospital-like facilities. In Texas, only seven existing clinics in the largest cities can satisfy that regulation.
Last October, when the Texas law went before the Supreme Court in a preliminary way, the Justices barred enforcement of the admitting privileges, but only as to two clinics in the Rio Grande Valley in the southwest part of the state — in McAllen and El Paso. The Court, in an order approved by an apparent six-to-three vote, temporarily barred Texas from enforcing the surgical facilities mandate anywhere in the state, including at any clinic that performs abortions by the use of drugs instead of surgery — so-called “medication abortions.”
The Court did not explain that order, and the Fifth Circuit, taking note of it on Tuesday, said that it could derive no guidance from what the Justices had done, in terms of the constitutionality of the two provisions at issue.
In its new ruling, the Fifth Circuit rejected all of the so-called “facial challenges” to the two restrictions — that is, claims that there are no circumstances factually in which either could ever be enforced.
On the admitting privileges provision, the Fifth Circuit said that it could be enforced everywhere in Texas except for a single doctor who has previously performed abortions at the clinic in McAllen — but it could be enforced even there if a new clinic opens in another city that is closer than the nearest location of a still-open clinic, in San Antonio.
The Fifth Circuit did not provide any exemption . It cannot now satisfy the surgical facility rule, and its doctors were not able to get admitting privileges at any hospitals.
The El Paso clinic was not exempted from the new law because, the Fifth Circuit found, about half of the women in that community who have sought abortions have traveled twelve miles away to a clinic in Santa Teresa, in New Mexico, across the state boundary.
When the Fifth Circuit ruled earlier in the Mississippi case, on the admitting privileges rule imposed in that state, it said that a state could not satisfy the constitutional right of its female residents to obtain an abortion by shifting that to a neighboring state. That would be the case in Mississippi, the appeals court said, because the effect in that state of the privileges rule would be to force the closing of the only remaining clinic in the state, in Jackson. That part of the Fifth Circuit ruling is one of the targets of the state’s currently pending appeal to the Supreme Court in that case.
The Fifth Circuit’s decision was outlined in fifty-six pages.
The operators of clinics in the state have the option now of seeking to challenge the new ruling before the en banc Fifth Circuit or taking their case back to the Supreme Court. In the meantime, they would be free to ask either the Fifth Circuit or the Supreme Court to put the new ruling on hold during further appeals. As you can see, that might happen from the first paragraph.
Photo Courtesy of Fischer Fotos