In a ruling that seems likely to be tested in the Supreme Court, a federal appeals court on Thursday upheld new restrictions on women’s access to abortions in Texas that have been in effect for almost five months and that have led to the closing of many clinics in the state.  The thirty-four-page decision by the U.S. Court of Appeals for the Fifth Circuit is here.

The Court left one of the restrictions at issue in effect by a five-to-four vote in November.  That was the only restriction at issue before the Justices at that time.

Texas was among a group of states that in recent years have been passing a host of new laws to curb abortion rights, and federal court decisions on challenges to some of these provisions are now beginning to reach or move toward the Supreme Court.

One of the Texas limits upheld by the Fifth Circuit Thursday barred any doctor from performing an abortion at a clinic unless that doctor had staff privileges at a regular hospital within thirty miles.  That was the restriction left in effect by the Court in November.  The Fifth Circuit’s view on this provision appears to conflict with that of the Seventh Circuit on a similar law passed in Wisconsin.

The other provision upheld in Texas bars doctors from performing medical abortions — that is, using drugs rather than surgery — beyond seven weeks of pregnancy, although many doctors now use that method for particular patients after nine and perhaps ten weeks.

That kind of limit is considered to be “off label” because it differs from a regulation issued by the Food and Drug Administration putting a seven-week limit on the use of drugs to terminate pregnancy.  A similar seven-week limit was recently upheld by the Sixth Circuit.

Planned Parenthood, the women’s health organization that has been leading the challenge to the wave of such new laws, contended that both of the Texas provisions imposed an “undue burden” on women’s exercise of their constitutional right to end pregnancy.

The doctors’ privilege provision, Planned Parenthood has contended, is such a tight restriction that some women in Texas — faced with the closing of about a third of the clinics where abortions have been performed — have to travel up to one hundred miles to obtain an abortion.

The organization has argued that the seven-week limit on medical abortions limits a doctor’s option to perform a later abortion by this method even though that would be safer in the doctor’s medical view for patients with certain health complications.

The Fifth Circuit found the Planned Parenthood challenges had failed on all points.

Posted in Cases in the Pipeline, Featured, Health Care

Recommended Citation: Lyle Denniston, Texas abortion limits upheld, SCOTUSblog (Mar. 27, 2014, 11:20 PM),