NRL News

Full 5th Circuit overwhelmingly rejects pro-abortionists’ challenge to Texas pro-life law

by | Oct 10, 2014


By Dave Andrusko


On October 9, the U.S. Court of Appeals for the Fifth Circuit refused to give full court review to a decision by a three-judge panel, thus allowing two provisions of a Texas omnibus pro-life bill to go into effect immediately. The vote was 12-3.

As NRL News Today reported, the components of HB 2 upheld were that abortion providers have admitting privileges at a hospital within 30 miles and that abortionists follow the FDA protocol for administering chemical abortifacients. Those had been stricken by U.S. District Judge Lee Yeakel.

The 12-member majority did not explain its decision while the three dissenters blasted the majority in a blistering 62-page dissent.

Among other sharp criticisms, Judge James Dennis ripped the court for its “abject deference to state authority annihilates any ‘real substance’ to the vital individual constitutional interest at stake,” adding that the majority had “flouted” the U.S. Supreme Court’s precedent barring laws that impose “undue burden” on a woman’s right to an abortion.

In a separate lawsuit, as reported here last week, lawyers for four Planned Parenthood affiliates, Whole Woman’s Health and other independent abortion providers filed an emergency appeal with the United States Supreme Court, asking the High Court to reinstate an injunction granted by U.S. District Judge Lee Yeakel which had been stayed by a different three-judge panel.

5thCircuit3At issue there is the requirement that abortion clinics meet the same building standards as ambulatory surgical centers. Justice Antonin Scalia could make a decision on his own or refer the matter to the full court.

On Thursday the state of Texas offered its rebuttal, explaining why the High Court should not halt enforcement of that part of HB 2.

According to Tony Mauro of The National Law Journal

“’Abortion remains widely available in Texas,’ state solicitor general Jonathan Mitchell told the high court. He was responding to claims by abortion rights groups in Whole Women’s Health v. Lakey that the closure of clinics caused by the Texas law is making abortions out of reach for large numbers of women in the state. …

“Mitchell wrote, ‘The plaintiffs’ application relies on vague hyperbole at the expense of data and evidence.’”

Added Brian M. Rosenthal of the San Antonio Express News, Texas Attorney General Greg Abbott’s 66-page motion described the regulations as “an inconvenience, but still a manageable one” for women seeking an abortion.

“Abbott noted that 83 percent of Texas women still live within 150 miles of an abortion facility. As for the closed clinics, he said they could have stayed open by complying with the regulations, as some other abortion providers did.

“’Behind the plaintiffs’ impassioned rhetoric, this case is more about who will be performing abortions in Texas than it is about whether they will be performed,’ Abbott said, urging the high court not to intervene with a federal appeals court decision to allow the regulations to take effect as the case continues.”


In March, a separate three-judge panel of the 5th Circuit consisting of, Judges Edith Jones, Catharina Haynes, and Jennifer Walker Elrod rejected a challenge brought by the Planned Parenthood Federation of America, the American Civil Liberties Union, the Center for Reproductive Rights, and several Texas abortion clinics.

They judges unanimously agreed it was permissible for Texas to require abortionists to have admitting privileges to a local hospital.

They also upheld the requirement that the abortionist be in the same room as the woman receiving the chemical abortifacients (which is not the case with so-called ‘web-cam” abortions) and that abortionists follow the protocol approved by the FDA for the use of the two-drug “RU-486” abortion technique [].

In April [], the Center for Reproductive Rights asked the full 5th Circuit to hear the case, which it did yesterday.

Meanwhile, last week a panel of the 5th Circuit upheld the requirement that holds abortion clinics to the same standards as ambulatory surgical centers. In so doing not the judges not so subtly criticized Judge Yeakel.

Yeakel’s decision to invalidate the admitting-privileges requirement throughout Texas [the abortion clinics had asked him only to strike down the requirement as it applied to two clinics in El Paso and McAllen] was “’inappropriate because plaintiffs did not request that relief’ and was ‘directly contrary to this circuit’s precedent,’ the judges wrote.”

Categories: Judicial
Tags: HB 2 Texas