Texas Wins Emergency Delay, Can Enforce Abortion Limits
By Andrew Harris, Laurel Brubaker Calkins & David Mildenberg – Nov 1, 2013 12:01 AM ET
Texas won a U.S. appeals court order temporarily blocking a federal judge’s decision to strike down a state law requiring abortion doctors to have local hospital admission privileges.
The decision by a three-judge panel of the U.S. Court of Appeals in New Orleans will allow Texas officials to enforce the provision while they seek reversal of the Oct. 28 ruling by U.S. District Judge Lee Yeakel in Austin.
“This unanimous 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,” state Attorney General Greg Abbott said yesterday in a statement.
The provision challenged by Planned Parenthood and other abortion providers compels doctors who perform the procedure to have admitting privileges at a hospital within 30 miles (48 kilometers) of their clinics.
It was signed into law with a package of other abortion-restricting measures by Governor Rick Perry, a Republican, on July 18. Opposition to the law by Democratic State Senator Wendy R. Davis of Fort Worth provided a catalyst for her own bid to succeed Perry as governor, announced last month. Abbott, a Republican, is also a candidate for governor.
The plaintiffs argued the provision would force clinics to close and deny women in a wide swath of the second-biggest U.S. state access to the procedure, a right recognized as constitutionally protected by the U.S. Supreme Court
Yeakel’s decision, rendered after a three-day trial, prevented the law from taking effect as scheduled on Oct. 29.
The affiliation requirement “does not bear a rational relationship to the legitimate right of the state in preserving and promoting fetal life or a woman’s health,” he said.
The state had immediately appealed his ruling.
The Texas law is the first to be provisionally reinstated by an appeals court.
“This fight is far from over,” Cecile Richards, president of Planned Parenthood Federation of America, said in an e-mailed statement.
“This restriction clearly violates Texas women’s constitutional rights by drastically reducing access to safe and legal abortion statewide,” she said.
The three judges on the appeals panel that issued yesterday’s ruling were each appointed by former President George W. Bush, a Republican.
U.S. Circuit Judge Priscilla R. Owen, whose appointment was challenged by opposing Democrats for four years, wrote the decision.
“There was evidence offered by Planned Parenthood that more than 90 percent of the women seeking an abortion in Texas would be able to obtain an abortion from a physician within 100 miles of their respective residences even if” the new law took effect, Owen said.
“This does not constitute an undue burden in a large fraction of the relevant cases,” Owen said. Joining in her opinion were U.S. Circuit judges Jennifer Walker Elrod and Catharina Haynes.
The judges also blocked part of Yeakel’s decision concerning the dispensation of pregnancy-terminating drugs, calling it “overly broad.”
The panel expedited the state’s appeal and directed the court’s clerk to schedule oral arguments in January.
“Because of this ruling, at least 13 or more clinics in Texas will close and irreparable damage will be done to women’s health in Texas,” Heather Busby, executive director of NARAL Pro-Choice Texas, said in a phone interview. “It’s a tragedy. No recourse is apparent to me.”
Joe Pojman, executive director of Texas Alliance for Life, which opposes abortion, praised the ruling because he said it will lead to safer clinics. About two-thirds of Texas’s 42 clinics that provide abortions will remain open, he said, citing testimony by women’s health advocates at the court hearing in Austin.
Perry said the decision affirms the state’s right to protect both the unborn and the health of the women.
‘Culture of Life’
“We will continue doing everything we can to protect a culture of life in our state,” he said in a statement.
Republicans expect Democrats in 2014 to use the ruling as an example of a “war on women,” said Matt Mackowiak, a Republican political consultant in Austin. He said he doubts that argument will sway voters.
Davis knows abortion is unpopular in Texas, Mackowiak said.
“It’s very unusual because folks on the left want to use this issue, but their nominee doesn’t,” Mackowiak said. “She became a star because of this issue, yet now she is choosing to de-emphasize it.”
The appellate case is Planned Parenthood v. Abbott, 13-51008, U.S. Court of Appeals for the Fifth Circuit (New Orleans). The lower-court case is Planned Parenthood of Greater Texas Surgical Health Services v. Abbott, 13-cv-00862, U.S. District Court, Western District of Texas (Austin).
To contact the reporters on this story: Andrew Harris in federal court in Chicago at email@example.com; Laurel Brubaker Calkins in Houston at firstname.lastname@example.org; David Mildenberg in Austin at email@example.com