The decision by a three-judge panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans, allows a provision of the law requiring abortion clinics to meet the same stringent standards as surgical centers to take effect.
The decision follows a ruling by U.S. District Judge Lee Yeakel concluding the provision was designed to limit availability of abortion under the guise of making clinics safer.
The group of clinics and doctors who sued to invalidate implementation of the provision argued requiring abortion clinics to meet the same architectural, plumbing, staffing, training and other requirements that apply to surgical centers was costly and unnecessary.
Lawyers from Texas Attorney General Greg Abbott’s office argued the provision would make the clinics safer.
The clinics presented evidence at trial that one in six Texas women would live 150 miles from the nearest abortion clinic if existing clinics, most of which don’t meet surgical-center standards, were put out of business. They argued this would impose an unconstitutional burden on a large fraction of women seeking abortions.
The lower court concluded that if the provision took effect, the remaining clinics would be so far away that, in effect, the closures would amount to a complete ban on abortion.
However, the three appellate judges agreed with the state that the clinics didn’t present enough evidence to prove that a “large fraction” of women would be unconstitutionally burdened by the clinic closures.
One in six women is “nowhere near a ‘large fraction,’” the panel wrote. The court was not swayed by the distance argument either, claiming the Supreme Court in its 1992 ruling Planned Parenthood v. Casey — the case that created the “large fraction” test — upheld a restriction that put the nearest abortion clinic six hours away for some women.
The decision by the panel is temporary. It’s possible that the clinics could reopen as the case proceeds. In the meantime, clinics may try to appeal Thursday’s ruling to the Supreme Court of the full Fifth Circuit.
The ruling is not a surprise coming from the Fifth Circuit, one of the most conservative federal appellate courts. It previously sided with the state in a challenge to another provision of the law that requires any physician performing an abortion to have active admitting privileges at a hospital within 30 miles of the location where the abortion is performed.
Two of the three judges were appointed by Republican presidents. The third judge, Stephen A. Higginson, was appointed by President Obama. He agreed with the other judges, but would have given exception to two clinics, one in El Paso and one in McAllen.
In all, 80 percent of Texas’s abortion clinics serving 5.4 million women of reproductive age have closed since the law took effect. All of the clinics west and south of San Antonio have closed, leaving a large swath of the state without abortion services. Residents of the Rio Grande valley will be at least 230 miles from the nearest abortion clinic.
The “ruling has gutted Texas women’s constitutional rights and access to critical reproductive health care, and stands to make safe, legal abortion essentially disappear overnight,” Nancy Northup, the president and chief executive of the Center for Reproductive Rights, said in a statement. The Center’s lawyers were part of the legal team representing the clinics in the lawsuit.
Abbot spokesman Lauren Bean called the decision “a vindication of the careful deliberation by the Texas Legislature to craft a law to protect the health and safety of Texas women.”
Abbot, the Republican gubernatorial nominee in Texas, is leading in the polls. His opponent is Wendy Davis, the state senator famous for her 13-hour filibuster against the law last June, during which she was not allowed to use the bathroom, stray from the topic of abortion or even lean on her desk.
The case is Whole Woman’s Health v. Lakey.