Moving further to allow Texas to enforce new limits on abortion clinics in the state, a federal appeals court has temporarily approved a requirement that those facilities must be upgraded to perform major surgical operations, even if a clinic is only using drugs to end a pregnancy.

The ruling, issued Thursday evening by the U.S. Court of Appeals for the Fifth Circuit, is expected to mean that only seven or eight clinics located in the largest cities in Texas will remain open.  Not long ago, Texas had more than forty clinics operating throughout the state.

This marked the second time that the Fifth Circuit had overturned most of a ruling by a federal trial judge in Austin blocking enforcement of provisions in a broad new abortion-regulation law that was passed by the state legislature in July of last year.

Earlier this year, the Fifth Circuit had allowed the state to continue to enforce — and later upheld as constitutional — a requirement that took effect last October that any doctor performing an abortion in the state must have privileges to send patients to a hospital within thirty miles.  After that rule went into effect, the number of clinics still open dropped from more than forty to fewer than thirty.  In its Thursday ruling, the Fifth Circuit reaffirmed its view that this limitation is valid.

The second provision, not yet upheld as constitutional but now allowed to go into effect, requires all abortion clinics in the state to have facilities equal to an “ambulatory surgical center.”  It has been estimated that, if a clinic does not meet that standard, it could cost upwards of $1 million to upgrade.

In blocking that requirement across the state, a federal district judge in Austin said that, if allowed to go into effect, the only clinics meeting the standard would be seven existing ones and one planned new one, all located in either Austin, Dallas, Fort Worth, Houston, or San Antonio.   The Fifth Circuit, in setting aside the judge’s order blocking the surgery upgrade requirement, did not question that such an outcome would occur.

However, it did narrow its ruling to give some leeway to continue operating a clinic in El Paso.  That clinic is the only one providing abortions in a large part of southwest Texas.  From there, pregnant women would have to travel at least 150 miles to reach a clinic equipped sufficiently that it can now stay open.

The Fifth Circuit’s ruling is not a final decision on the constitutionality of the surgical facilities requirement, but it does allow that requirement to be enforced while its legality remains an issue before that court.

The new decision ruled in favor of the state’s legal defense of the requirement on every point except for leaving some room for the El Paso facility to avoid having to make a full upgrade.

Circuit Judge Jennifer Walker Elrod wrote the opinion, joined by Circuit Judge Jerry E. Smith.  Circuit Judge Stephen A. Higginson partly dissented, arguing that the majority’s ruling had swept too far.  If only eight clinics will remain open, Judge Higginson said, they would have to increase their case load by more than fourfold in order to provide abortions to women for whom clinics closer to home had closed.

It is unclear at this point whether the operators of the affected clinics will take the issue on to the Supreme Court.  After the appeals court had allowed continued enforcement of the doctors’ hospital privileges issue, the Supreme Court refused to overturn that decision.

Posted in Cases in the Pipeline, Featured

Recommended Citation: Lyle Denniston, Fifth Circuit allows more limits on abortion in Texas, SCOTUSblog (Oct. 3, 2014, 1:03 PM),