Fifth circuit upholds controversial Texas abortion law

March 28

Yesterday, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit upheld Texas’ controversial abortion law, known as H.B. 2. The challenged provisions of the law required doctors performing abortions to have admitting privileges at a local hospital and mandated that abortion-inducing drugs be prescribed only in accordance with those protocols approved by the U.S. Food & Drug Administration. In Planned Parenthood of Greater Texas Surgical Health Services v. Abbott, the Court found that neither requirement imposed an undue burden on exercise of the abortion right. The opinion was written by Judge Edith Jones, and joined by Judges Jennifer Elrod and Catharina Haynes.

Could this case bring abortion back to the High Court? Perhaps. Although HB2 was quite controversial — and prompted a noted filibuster by State Sen. Wendy Davis — equivalent laws have been enacted in other states and upheld against constitutional challenge. The U.S. Courts of Appeals for the Fourth and Eighth Circuits, for instance, both upheld similar admitting privilege requirements. The U.S. Court of Appeals for the Sixth Circuit also upheld a similar restriction on the use of abortion-inducing drugs. On the other hand, the U.S. Court of Appeals for the Seventh Circuit upheld a preliminary injunction against an admitting-privilege requirement passed in Wisconsin. Although the procedural posture was different, the Fifth Circuit expressly rejected some of the Seventh Circuit’s reasoning, creating an opening to argue there’s a circuit split.  In addition, the Court recently expressed interest in considering the permissibility of restrictions on the use of abortion-inducing drugs.

Jonathan H. Adler teaches courses in constitutional, administrative, and environmental law at the Case Western University School of Law, where he is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation.
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