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Legal wars on abortion heating up

Nine months after the Supreme Court allowed enforcement of a Texas law that led to the closing of a third of all clinics in that state, a new courthouse battle over that same law is rapidly developing.  In a rushed motion filed on Sunday, the state of Texas took the issue back to the U.S. Court of Appeals for the Fifth Circuit after a federal judge in Austin struck it down on Friday afternoon.  The issue may not stop at the appeals court level.

The issue has also spread to Lousiana, where a federal judge on Sunday night temporarily blocked a similar law from taking full effect in that state Monday.  Earlier, the dispute had also reached Alabama and Mississippi as decisions began emerging in lawsuits challenging a series of new laws by state legislatures narrowing access to abortions.

At the center of this controversy are state laws, nearly identical in form, that require doctors performing abortions at clinics to have professional privileges to admit patients to hospitals within thirty miles of the clinics.

The Texas law on that topic led to a five-to-four split in the Supreme Court in November, allowing the measure to remain in effect.  The state had begun enforcing it in October, with permission from the Fifth Circuit.

At that time, the courts were responding to a challenge by Texas abortion clinics and doctors to the law as written — that is, a facial challenge begun before the law was to take effect.  Now, the issue unfolding is whether the law is unconstitutional as applied to specific clinics and doctors in the state.

A federal district judge in Austin, Lee Yeakel, had blocked the privileges law from taking effect, but that was overturned by the Fifth Circuit, and the Supreme Court allowed enforcement to continue.  It was Judge Yeakel who again barred enforcement last Friday, after holding a trial on the as-applied challenge.

It is that new ruling that Texas officials sought to be postponed in their Sunday motion to the Fifth Circuit.  They asked that Judge Yeakel’s ruling be subjected to swift review.

In the new round of the controversy in Texas, a second provision has also come into play, and Judge Yeakel’s ruling on Friday found that requirement to be unconstitutional and barred state officials from beginning its enforcement statewide on Monday.

Under that provision, Texas abortion clinics must have facilities closely similar to those at sophisticated surgical centers — a law that challengers argue will be so costly to obey that it will reduce the number of abortion clinics in the state to no more than eight, concentrated in urban centers.  Texas recently had more than forty clinics performing abortions.

Although the clinics, in their renewed challenge, had asked the Austin judge for a more limited ruling, he wound up concluding that the two provisions — the admission privileges requirement and the surgical facility mandate — worked together to impose a substantial limit on women’s right to seek abortions throughout the state.  He thus barred enforcement, statewide, of both provisions.

Judge Yeakel concluded that the combined effect of the new requirements will mean that hundreds of thousands of women who might seek abortions in Texas would be as far from an eligible facility as 150 miles.

State officials argued in their new plea to the Fifth Circuit that Judge Yeakel had gone further than the challengers had asked, and issued a sweeping ruling that contradicts both prior rulings of the Fifth Circuit, and of the Supreme Court.

Meanwhile, in Louisiana, U.S. District Judge John W. deGravelles of Baton Rouge temporarily delayed full enforcement of the state’s admissions privilege law until he can hold a hearing on potential further action.  He said the law could formally go into effect on Monday, but that abortion clinics and doctors in the meantime would not face penalties for violating the law as long as clinic doctors are awaiting responses to their applications for hospital privileges.

The clinics and the doctors can continue to provide abortion services in the meantime, the judge concluded.   At this point, the judge said, he was satisfied that the challengers were likely to be able to show ultimately that the law imposes a substantial burden on women’s right to abortion, and that they would experience injury if the law were fully applied to them while the doctors are seeking hospital privileges.

However, the judge refused to make his order broader, to apply if the doctors should be turned down on their applications for privileges. He said the situation that would then occur was speculative at this point.  It is also unclear, he said, whether denial of those applications would interfere with abortion rights throughout the state.   He set up a status conference on the applications question for thirty days from now.

Recommended Citation: Lyle Denniston, Legal wars on abortion heating up, SCOTUSblog (Sep. 2, 2014, 12:05 AM),