Full Fifth Circuit Refuses to Reconsider Law Blocking Abortion Access across Texas

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AUSTIN — The full U.S Court of Appeals for the Fifth Circuit declined to reconsider the constitutionality of a portion of a Texas law blocking access to abortion across large parts of the state, despite an emphatic dissent. The American Civil Liberties Union, the ACLU of Texas, Planned Parenthood Federation of America and the Center for Reproductive Rights had asked the court to reconsider the constitutionality of the provision of Texas’ HB2 that requires abortion providers to have hospital admitting privileges. This provision of the law has already forced some health centers to close and others to stop providing abortions, making access to abortion services scarce in the state.

“Today’s decision demonstrates, once again, that this court is unwilling to place any limits whatsoever on politicians who are intent on shutting down clinics and preventing women from getting abortions,” said Jennifer Dalven, director of the ACLU Reproductive Freedom Project. “Women’s safety is, of course, our top priority. But as the major medical groups have explained, these laws don’t make women safer; they put them at risk by shutting down quality health care providers. The court’s decision to ignore the medical experts gives politicians the green light to trample on women’s constitutional rights.”

While the federal district court initially struck down the requirement as unconstitutional in October 2013, a panel of the Fifth Circuit Court of Appeals reversed that decision and upheld the law.

Doctors and major medical groups like the American Medical Association and the American Congress of Obstetricians and Gynecologists oppose these types of laws because they do not improve patient safety but instead harm women by shutting down abortion providers throughout the state.

Physicians who provide abortions are often unable to obtain hospital privileges for a variety of reasons that have nothing to do with their experience, qualifications, or credentials, including the hospital’s opposition to abortion and the hospital’s financial interests, such as requiring doctors to admit a certain number of patients each year.

In a forceful dissent, Judge James L. Dennis called the test applied by the panel that denied the en banc request a “sham,” saying that it “flouts the Supreme Court’s decision in Planned Parenthood v. Casey.”

He writes that the court denied “its duty to correct the panel’s perversion of the undue burden standard” and that the court is “essentially giving states carte blanche with respect to the regulation of the right to an abortion.” He continues, including quotes from Casey, that “This court’s abject deference to state authority annihilates any ‘real substance’ to the vital individual constitutional interest at stake: the ‘urgent claims of the woman to retain the ultimate control over her destiny and her body, claims implicit in the meaning of liberty.'”

Similar admitting privileges restrictions threaten access to safe, legal abortion across the South:

• Mississippi: A similar law, currently blocked by federal court order, threatens to shut down the state’s only remaining abortion provider.
• Oklahoma: The law is set to take effect on Nov. 1 and has been challenged in court.
• Louisiana: A court has temporarily blocked the law, which was set to take effect on Sept. 1.
• Wisconsin: A federal court has blocked the law in a challenge brought by the ACLU and Planned Parenthood challenged.
• Alabama: A federal court has held the law is unconstitutional in a challenge brought by the ACLU and Planned Parenthood.

Another provision of the law, which requires medically unnecessary and prohibitively costly renovations, was allowed to take effect earlier this month, leaving no more than 8 health centers open for the state’s 5.5 million women. Close to one million women will now have to travel 300 miles round trip in order to get a safe, legal abortion.

More information on these types of laws and the Alabama and Wisconsin cases can be found at:
https://www.aclu.org/trap-laws