(PRESS RELEASE) The full U.S. Court of Appeals for the Fifth Circuit has refused to reconsider the constitutionality of two provisions of Texas’ HB2, a measure that has shuttered abortion providing clinics statewide.
In declining to re-hear the case, the court has let stand the provision of HB2 that forces doctors who provide abortion care to have admitting privileges at a hospital within 30 miles, a requirement that was upheld by a panel of the Fifth Circuit earlier this year. In a scathing dissent, Judge James L. Dennis notes “the panel’s sham undue burden test will continue to exert its precedential force in courts’ review of challenges to similar types of recently minted abortion restrictions in Texas, Louisiana, and Mississippi.” He also blasts the court for failing to fulfill “its duty to correct the panel’s perversion of the undue burden standard,” writing that laws like Texas’ “will be given only a modicum of scrutiny, essentially giving states carte blanche with respect to the regulation of the right to an abortion.”
The court also let stand a provision in HB2 that forces physicians providing medication abortion to go against years of research and their professional experience by following an inferior, outdated, and less effective protocol— even for those women who are unable to undergo a surgical procedure due to an increased risk to their health.
Said Nancy Northup, president and CEO of the Center for Reproductive Rights:
“Texas now stands at the epicenter of a national health care crisis brought on by politicians who have all but eliminated access to safe and legal abortion care for countless women, leaving many with only unsafe and unregulated options that may very well threaten their lives.
“These politicians have turned the reproductive health care system across huge expanses of the U.S. into a tattered patchwork. Women’s constitutional rights and access to safe, legal abortion care now differ wildly depending on their zip code.
“This is a threat to the well-being of millions of women, and an affront to the promise of equal rights and legal protection for all Americans. It is increasingly clear that either the Supreme Court or Congress needs to step in to protect the rights of women across the nation from this relentless assault on their dignity, health and rights.
More than a dozen women’s health care providers who jointly filed suit in September 2013 on behalf of their patients are currently considering all available options to restore access to safe and legal abortion services to the women of Texas.
This is the first challenge to Texas’ HB2, the second lawsuit—which challenges the admitting privileges requirement as applied to two of the hardest hit communities in the state and HB2’s onerous ambulatory surgical center requirements—is currently before the U.S. Supreme Court on a request to reinstate the district court’s injunction after a ruling from a panel of the Fifth Circuit on October 2 which shuttered all but eight clinics in the state.
Texas’ admitting privileges requirement was initially struck down, but then took effect on October 31, 2013, after a three judge panel of the Fifth Circuit granted the State’s motion to stay the lower court’s injunction. In March 2014, another three-judge panel of the Court upheld both the admitting privileges requirement and the restrictions on medication abortion. The providers then requested the full Fifth Circuit review the constitutionality of the admitting privileges requirement and the lack of health exception in the restrictions on medication abortion.
Both restrictions are opposed by both the American Medical Association (AMA) and the American College of Obstetricians and Gynecologists (ACOG). In an amicus brief filed in the case, the organizations wrote that the law “jeopardizes women’s health in Texas” and does “nothing to protect the health of women.” Admitting privileges provide no increased benefits for the fewer than 1 percent of abortion patients who experience complications. Furthermore, privileges can often be impossible to obtain due to individual hospital policies or for reasons not related to the doctors’ qualifications.
The lawsuit, Planned Parenthood v. Abbott, was filed on behalf of the Texas reproductive health care providers by the Center for Reproductive Rights, Planned Parenthood Federation of America, the American Civil Liberties Union, and Texas law firm George Brothers Kincaid &, Horton.
Harmful and unconstitutional restrictions like these further underscore the need for the federal Women's Health Protection Act (S. 1696/H.R. 3471)—a bill that would prohibit states like Texas from imposing unconstitutional restrictions on reproductive health care providers that apply to no similar medical care, interfere with women’s personal decision making, and block access to safe and legal abortion services.
“The Women’s Health Protection Act would ensure that politicians could not single out reproductive health care providers with a litany of regulations designed purely to drive them out of practice and roll back our constitutional rights,” said Northup. “We call on elected officials across the U.S. to demonstrate their commitment to women rights, health, and well-being by urging Congress to pass the Women’s Health Protection Act.”