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UPDATED: Out-of-state abortion access as an alternative

UPDATED Wednesday 11:55 a.m.   Abortion clinics and doctors in Texas asked the Fifth Circuit on Wednesday to put its new ruling on hold, while an appeal to the Supreme Court is pursued.  The stay application can be read here.


With the Supreme Court poised to act soon on the constitutionality of abortion regulations that would mean women must leave the state to have the procedure, a federal appeals court ruled on Tuesday that such an alternative is not necessarily unconstitutional.  That ruling in a Texas case was issued by the U.S. Court of Appeals for the Fifth Circuit — the same court that made the different Mississippi decision that is now awaiting the Justices’ response.

The new decision on Texas’s 2013 abortion law was a final ruling mostly upholding two key provisions of that law, and it differed in significant respects from the way the Supreme Court reacted to the same measure, in a temporary order on the Texas law last October.  The effect of the appeals court’s new decision seems likely to keep some Texas clinics that are now closed from reopening, and make abortions available at probably no more than nine clinics statewide — compared to about forty before the law was passed.

One of the provisions of the Texas law is the same as the regulation at issue in the Mississippi case that the Supreme Court is scheduled to consider at its private conference on Thursday.  That requires doctors who perform abortions at clinics to have admitting privileges at a nearby hospital in case of emergency or a need for back-up medical treatment.

Clinic operators in both states insist that abortion is such a safe procedure that access to a hospital is an unnecessary burden on clinic operations and thus on women’s abortion rights.  In Mississippi, it is generally understood that, if that requirement is allowed to go into effect, the last remaining abortion clinic in the state will have to close.  In Texas, that requirement, already in effect, has led to the closing of an unspecified number of clinics.

The other requirement at issue in the Texas case, but not in the Mississippi lawsuit, compels clinics performing abortions to be outfitted as “ambulatory surgical centers,” meaning upgrading to hospital-like facilities.  In Texas, it is understood that only seven existing clinics in the largest cities — and perhaps an eighth that may soon open in another city — can satisfy that regulation.

Last October, when the Texas law went before the Supreme Court in a preliminary way, the Justices barred enforcement of the admitting privileges, but only as to two clinics in the Rio Grande Valley in the southwest part of the state — in McAllen and El Paso.  The Court, in an order approved by an apparent six-to-three vote, temporarily barred Texas from enforcing the surgical facilities mandate anywhere in the state, including at any clinic that performs abortions by the use of drugs instead of surgery — so-called “medication abortions.”

The Court did not explain that order, and the Fifth Circuit, taking note of it on Tuesday, said that it could derive no guidance from what the Justices had done, in terms of the constitutionality of the two provisions at issue.

In its new ruling, the Fifth Circuit rejected all of the so-called “facial challenges” to the two restrictions — that is, claims that there are no circumstances factually in which either could ever be enforced.

On the admitting privileges provision, the Fifth Circuit said that it could be enforced everywhere in Texas except for a single doctor who has previously performed abortions at the clinic in McAllen — but it could be enforced even there if a new clinic opens in another city that is closer than the nearest location of a still-open clinic, in San Antonio.

The McAllen clinic actually has been closed since November 2013, apparently because of the new restrictions.  It cannot meet the surgical facility mandate, and its doctors have not been able to gain admitting privileges at any nearby hospital.

The new decision relieved the McAllen clinic of two of the specific provisions of the surgical center mandate — an enlarged physical plant and fire prevention equipment.   The new ruling allows all of the surgical facility requirements to be enforced everywhere else in the state, including at clinics where abortions are performed with drugs rather than surgery.

The clinic in El Paso has been closed since April of last year, but the Fifth Circuit did not provide any exemption for it from the new restrictions in order to enable it to reopen, as its owners would like to do.  It cannot now satisfy the surgical facility rule, and its doctors were not able to get admitting privileges at any hospitals.

The El Paso clinic was not exempted from the new law because, the Fifth Circuit found, about half of the women in that community who have sought abortions have traveled twelve miles away to a clinic in Santa Teresa, in New Mexico, across the state boundary.

When the Fifth Circuit ruled earlier in the Mississippi case, on the admitting privileges rule imposed in that state, it said that a state could not satisfy the constitutional right of its female residents to obtain an abortion by shifting that to a neighboring state.  That would be the case in Mississippi, the appeals court said, because the effect in that state of the privileges rule would be to force the closing of the only remaining clinic in the state, in Jackson.   That part of the Fifth Circuit ruling is one of the targets of the state’s currently pending appeal to the Supreme Court in that case.

The Fifth Circuit, in dealing with both of the requirements of the Texas law as it applied to the El Paso clinic, said the ruling in the Mississippi case could be understood as different because of two factors that make the situations different.  The Texas rules will not lead to the closing of all clinics in the state, as the Mississippi rules would, the Fifth Circuit said, and a significant number of women in the El Paso area have already crossed the border to get abortions, which has not happened in Mississippi.

The Fifth Circuit’s new fifty-six-page opinion was unsigned.  It was joined by the three court of appeals judges on the panel: Jennifer Walker Elrod, Catharina Haynes, and Edward C. Prado.

The operators of clinics in the state have the option now of seeking to challenge the new ruling before the en banc Fifth Circuit or, now or later, taking their case back to the Supreme Court.  In the meantime, they would be free to ask either the Fifth Circuit or the Supreme Court to put the new ruling on hold during further appeals.







Recommended Citation: Lyle Denniston, UPDATED: Out-of-state abortion access as an alternative, SCOTUSblog (Jun. 9, 2015, 7:01 PM),