Battle Over Abortion Law Heads to Federal Appeals Court

Texas abortion providers’ next hurdle in their legal fight against strict abortion regulations is set for next week in a hearing scheduled for federal court.

State attorneys and lawyers representing a coalition of abortion providers will face off on Sept. 12 in New Orleans, where the U.S. 5th Circuit Court of Appeals will consider whether to allow Texas to enforce a key provision of a new law that the providers say would lead to the closure of most abortion clinics in the state.

The provision — which was struck down last week by a federal judge — would require abortion facilities to meet the same standards as hospital-like ambulatory surgical centers, including minimum sizes for rooms and doorways and additional infrastructure like pipelines for anesthesia. Supporters of the new law say it's about women's safety.

The requirement, the final provision of a 2013 law known as House Bill 2, was set to go into effect on Monday. But U.S. District Judge Lee Yeakel of the District Court for the Western District of Texas on Friday ruled in favor of the abortion providers who had asked the judge to block the provision.

A decision from the 5th Circuit could allow the regulation to go into effect as the case goes through the appeals process. But on Tuesday evening, the appeals court rejected the state’s emergency petition to enforce the law, pointing out that state attorneys — led by Attorney General Greg Abbott — had submitted a “tardy motion.” In its rejection, the 5th Circuit’s clerk wrote that Abbott, the Republican candidate for governor, and his team had waited to file the motion until 11:59 p.m. the day before the ambulatory surgical center provision was set to take effect.

“This did not allow time for a response, or for the court to adequately to consider the motion, before the scheduled effective date” despite the state’s claims of “irreparable harm,” wrote court clerk Lyle W. Cayce in a short response from the court.

Yeakel also sided with the abortion providers on a separate provision of the law, which requires all doctors who perform abortions to have admitting privileges at a hospital within 30 miles of an abortion clinic. The providers argued that the provision was unconstitutional as applied to two clinics that shut down because of it: Whole Woman’s Health in McAllen and Reproductive Services in El Paso.

State attorneys contend in their petition that Texas should be allowed to enforce the admitting privileges provision during the appeals process because language in Yeakel's ruling "appears to be intended" to invalidate the provision statewide. Both parties are now questioning how to interpret the ruling.

When the parties convene in New Orleans, the state’s legal team is expected to double down on its argument that Texas would “suffer irreparable injury” if the court did not allow it to enforce the law because it “prevents the State from enforcing a duly enacted statute,” as stated in its petition.

The state has fought against the lawsuit, which was brought by the Center for Reproductive Rights on behalf of several abortion providers, saying there isn’t enough evidence that the abortion law creates an “undue burden” for the majority of women seeking abortions.

A spokeswoman for the attorney general’s office said she had no comment on the case.  Instead, she pointed to the office's previous statement that the state did not agree with Yeakel’s ruling and would seek immediate relief from the 5^th Circuit.

The abortion providers’ attorneys have argued that the obstacles imposed on Texas women by the new regulations meet the “undue burden” standard needed to prove the new rules unconstitutional. The providers say the law would leave women west or south of San Antonio anywhere from 150 to 500 miles away from a Texas abortion facility. 

Esha Bhandari, an attorney representing the abortion clinics, said she was encouraged by the 5th Circuit’s initial rejection of the state’s petition because it will give the providers an opportunity to make their case at next week's hearing on why the regulations are inappropriate.

In his ruling, Yeakel said the state had reached a "tipping point" in limiting access to abortion when the ambulatory surgical center requirement is viewed in the context of the other state-imposed regulations, including the admitting privileges regulation, a 24-hour waiting period for abortions and requiring doctors to perform a sonogram on a woman at least 24 hours before she has an abortion.

Yeakel previously struck down the admitting privileges requirement of the law, but his decision was overturned by the same appeals court considering the current suit. A three-judge panel of the 5th Circuit argued that traveling 150 miles was not an undue burden.

Yeakel’s current ruling remains intact for now, but next Friday it could meet the same fate as his previous ruling. Even if the 5th Circuit allows for the state to immediately enforce the law, the legal battle will likely continue for months.

This story was produced in partnership with Kaiser Health News, an editorially independent program of the Henry J. Kaiser Family Foundation, a nonprofit, nonpartisan health policy research and communication organization not affiliated with Kaiser Permanente.