Fifth Circuit Court of Appeals Reinstates Major Restrictions in Texas Abortion Law


Home / Fifth Circuit Court of Appeals Reinstates Major Restrictions in Texas Abortion Law
Texas Governor Rick Perry pleased with decision of the Fifth Circuit Court of Appeals upholding Texas abortion law.

Texas Governor Rick Perry is pleased with decision of the Fifth Circuit Court of Appeals upholding Texas abortion law.

The decision, handed down on October 31, 2013, reversed a lower court’s ruling delivered three days earlier that would have allowed doctors to continue to perform abortions even though they do not have admitting privileges in a nearby hospital.

The appellate court’s decision is the latest step in the lawsuit wherein Planned Parenthood and other groups are arguing the Texas law is unconstitutional.

The Texas Abortion Law—Senate Bill 5

Legal experts have described the Texas law as one of the toughest pieces of abortion legislation in the United States. It provides that doctors can only perform abortions if they have admitting privileges in a hospital, which can be no more than 30 miles away from where the abortion is to be performed.

The law also requires that places where abortions are performed must meet the standards of an ambulatory surgical center. At the time the bill was first voted on in June 2013, only five of the state’s 42 clinics qualified.

The senate was set to vote on the bill on June 25, 2013, the last day of the then current session. State Senator Wendy Davis, a Democrat, began a filibuster around 11 a.m. that morning. The actual vote took place “around midnight” with Republicans arguing the passage of the bill occurred prior to midnight. Democrats argued the bill was not passed until the morning of the 26th, after the session ended.

There were disruptions in the chamber and Lt. Gov. David Dewhurst said he was unable to sign the bill into law until after midnight because of the “unruly mob.”

As the bill failed, Gov. Rick Perry convened a special session of the senate and the bill was eventually passed into law on July 12, 2013.

Legal Action Brought Against the State of Texas

The law was scheduled to take effect on October 29, 2013. Planned Parenthood and other groups commenced a legal action on September 26, challenging the constitutionality of two major provisions of the law.

Planned Parenthood is arguing that two sections of the law are unconstitutional. The groups claim the requirement that doctors have admitting privileges at a nearby hospital violates the liberty and privacy rights of patients and therefore violates the Due Process Clause. They also claim the restriction on doctors is unconstitutional because it is vague and unlawfully delegates the constitutional rights of patients to private persons.

The second section under attack is one that restricts medication abortions (as opposed to surgical abortions) to those authorized by a protocol set by the FDA, with only limited exceptions. Doctors often do not follow the protocol by giving a woman a lower dose of the drug, giving her an extra dose to take home or by extending the time period of the medicated abortion. Planned Parenthood is arguing this portion of the law also violates the Due Process Clause.

District Judge Found Restrictions Unconstitutional

The new abortion restrictions were set to become effective on October 29. The day before, after hearing three days of legal arguments, District Judge Lee Yeakel rendered a decision on an application for an injunction to prevent the state from enacting much of the new law.

Yeakel found the hospital privileges requirement unconstitutional on the grounds that it was “without a rational basis and places a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Women who are in crisis will be taken to a hospital even though their doctor has no privileges there.

The judge allowed the medicated abortion section to go forward, but granted an exception in situations where the life and health of the woman was affected.

On the same day the decision came down, Texas Attorney General Greg Abbott launched an emergency appeal with the Fifth Circuit Court of Appeals in New Orleans, arguing the hospital privileges requirement was a constitutional and a valid state objective.

The appellate court handed down their decision on October 31.

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