NRL News

Appeals Court Panel allows Texas to immediately enforce provisions of pro-life H.B.2

by | Oct 3, 2014


By Dave Andrusko

Judge Jennifer Walker Elrod

Judge Jennifer Walker Elrod

A three-judge panel of the 5th Circuit Court of Appeals has stayed the opinion of a lower court judge, thus allowing the state of Texas to enforce key provisions of its 2013 omnibus pro-life bill, HB 2, immediately.

H.B. 2 is the bill filibustered by pro-abortion state Senator Wendy Davis (D) who is now running for governor.

Opponents could appeal the decision to the full 5th circuit or to the United States Supreme Court.

The decision came from a panel consisting of Judges Jennifer Elrod (who wrote the opinion for the panel), Jerry Smith, and Stephen Higginson.

As National Right to Life News reported, in September the judges heard arguments from the Texas Attorney General’s office and the Center for Reproductive Rights (CRR) exactly one week after U.S. District Judge Lee Yeakel wrote that the requirement that abortion clinics meet the same building standards as ambulatory surgical centers “burdens Texas women in a way incompatible with the principles of personal freedom and privacy protected by the United States Constitution for the 40 years since Roe v. Wade.”

Judge Stephen Higginson

Judge Stephen Higginson

Yeakel also rolled back a rule that a different three-judge panel of the 5th circuit had already allowed to go into effect—the requirement that an abortionist have admitting privileges at a hospital within 30 miles of the abortion clinic.

NRL News Today reported in March that the panel consisting of Judge Edith Jones, Judge Catharina Haynes, and Judge Elrod upheld the admitting privileges requirement, reversing an earlier decision by Judge Yeakel.

Undeterred, Yeakel subsequently concluded the provision was unconstitutional “as applied.”

As the New York Times reported on Thursday

In an unusual move, the judge granted the abortion providers who sued the state broader relief than they had requested. Lawyers for abortion facilities had asked him to strike down the requirement as it applied to two clinics, in El Paso and McAllen. But Judge Yeakel ruled the admitting-privileges requirement and the surgical-center standards, operating together, put undue burdens on women statewide, and created “a brutally effective system of abortion regulation that reduces access to abortion clinics.”

At that point, lawyers for Texas Attorney General Greg Abbott appealed Yeakel’s ruling to the 5th Circuit, asking the court to temporarily block the decision while the appeal proceeded.

Judge Jerry Smith

Judge Jerry Smith

The Times’ Manny Fernandez was one of the few reporters to report on what Jonathan F. Mitchell, the state’s solicitor general, said in court documents and at a hearing in New Orleans.

Fernandez wrote

“Mitchell, the state’s solicitor general, said Judge Yeakel was legally barred from ruling on the statewide impact and constitutionality of the admitting-privileges requirement because the Fifth Circuit had already upheld it in March.

“Judge Yeakel’s actions ‘border on defiance of this court,’ Mr. Mitchell wrote in court documents.

“The panel, in its ruling on Thursday, appeared to agree with Mr. Mitchell. Judge Yeakel’s decision to invalidate the admitting-privileges requirement throughout Texas was “’inappropriate because plaintiffs did not request that relief’ and was ‘directly contrary to this circuit’s precedent,’ the judges wrote.”

CRR argued that the law’s requirement constituted an “undue burden” on a woman’s right to an abortion because a number of abortion clinics would close because they could not meet (or choose not to meet) the requirement that abortion clinics meet the same building standards as ambulatory surgical centers (ASCs).

The 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.”

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.”)

Pro-abortionists denounced the decision. The “ruling has gutted Texas women’s constitutional rights and access to critical reproductive health care and stands to make safe, legal abortion essentially disappear overnight,” said CRR president and CEO Nancy Northup. Added NARAL Pro-Choice Texas Executive Director Heather Busby, “It is gravely disappointing that the 5th Circuit has put ideology above the law.”

Lauren Bean, spokeswoman for the Texas Attorney General’s Office, said in a statement, “This 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.”