Fifth Circuit Refuses to Stay Ruling That Could Immediately Shutter All But 9 Abortion Clinics in Texas

Center for Reproductive Rights to ask Supreme Court to block ruling before it takes effect on July 1

(PRESS RELEASE)  Following an emergency request from Texas women’s health care providers, the U.S. Court of Appeals for the Fifth Circuit today refused to suspend its June 9 ruling—a decision which could force the closure of all but nine abortion clinics in the state on July 1.

The women’s health care providers—represented by the Center for Reproductive Rights—will now submit an emergency application to the U.S. Supreme Court later this evening requesting the justices stay the appellate court’s June 9 ruling and ensure the Texas clinics can remain open while the providers ask the nation’s highest court to review the case.

While today’s order modified the June 9 ruling as it applies to the last clinic in the Rio Grande Valley, the injunction is still so narrow that it may be of limited benefit to the women served by the clinic.

Said Nancy Northup, president and CEO of the Center for Reproductive Rights:

“As the Fifth Circuit once again turns a blind eye to the devastating consequences of Texas’ clinic shutdown law, it is imperative that the Supreme Court step in.

“No woman should be forced to cross state lines or travel hundreds of miles for essential health care. And millions of Texas women cannot simply wait for months as this legal battle continues, with severely restricted options for safe and legal abortion services in the state.

“Once again, the Supreme Court needs to halt this underhanded, unjustified and extremely harmful law.”

Major medical groups oppose the types of restrictions found in Texas’ clinic shutdown law The American Medical Association (AMA) and the American College of Obstetricians and Gynecologists (ACOG) submitted a joint amicus brief opposing the law, stating that “H.B. 2 does not serve the health of women in Texas but instead jeopardizes women’s health by restricting access to abortion providers.”  Medical experts confirm that legal abortion care in the U.S. is extremely safe, and that laws like Texas’ would do nothing to make it safer.  Meanwhile, real problems concerning women’s health in Texas, especially the state’s skyrocketing death rate for women in pregnancy and childbirth, continue to go unaddressed by Texas politicians.

Clinic shutdown laws have swept the South in recent years, threatening to further devastate abortion access in a region already facing limited availability of reproductive health care services.  The last abortion clinic in Mississippi is awaiting a decision on whether the U.S. Supreme Court will review that state’s clinic shutdown law in the next two weeks and trial begins in the challenge to Louisiana’s clinic shutdown law on Monday.

June 9th Ruling

The Fifth Circuit’s June 9 decision allowed the state’s requirement that every reproductive health care facility offering abortion services meet the same hospital-like building standards as an ambulatory surgical center (ASC) to go into effect on July 1 for nearly all clinics in the state—a measure that amounts to a multi-million dollar tax on abortion services and would close all but nine abortion providers in the state.  While the court partially enjoined the ASC requirement as applied to the last clinic in the Rio Grande Valley, its injunction is narrow and may be of limited benefit to the clinic and the women it serves.

The ruling also reverses the lower court’s injunction blocking the state’s admitting privileges requirement except as applied to a single doctor.  This provision has already forced approximately half the state’s abortion clinics to close their doors. 

The court ruled that women in El Paso—who will face a round-trip of over a thousand miles to obtain an abortion in Texas—could travel to neighboring state New Mexico – where there are no ASC or admitting privileges requirements – to access their constitutional right to safe and legal abortion.

Case History:  Whole Woman’s Health v Cole (formerly Whole Woman’s Health v Lakey)

On August 29, 2014 a federal district blocked two of the most harmful restriction of Texas’ House Bill 2 (HB2):  the ambulatory surgical center requirement and the admitting privileges requirement.  On October 2, 2014, the Fifth Circuit issued an order staying the lower court’s injunction .  For 12 days, all but seven reproductive health care facilities in the state were prevented from offering safe and legal abortion services—until October 14, 2014, when the United State Supreme Court responded to an emergency application by Texas health care providers and reinstated the injunction in large part, allowing many of the previously closed clinics to reopen their doors.

The clinics and physicians in this challenge are represented by Stephanie Toti and David Brown of the Center for Reproductive Rights, a team of attorneys from the law firm Morrison & Foerster led by J. Alexander Lawrence, and Austin attorneys Jan Soifer and Patrick O’Connell of the law firm O’Connell & Soifer.

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