Fifth Circuit Upholds|Texas Abortion Law

     NEW ORLEANS (CN) – The Fifth Circuit on Tuesday mostly upheld the terms of a Texas abortion law that if stands will reduce the number of statewide abortion providers to roughly seven.
     The Fifth Circuit upheld most of a Texas law that specifies abortions must be performed in hospital-style surgical centers and can only be performed by doctors with admitting privileges to hospitals within 30 miles.
     If the circuit’s ruling goes into effect, 13 clinics that do not meet the standards could be forced to close next month.
     In its ruling, the Fifth Circuit cited explanations given by Texas for the laws, which are among the most restrictive in the nation.
     The court cited an expert from the state who testified that abortions should be performed in ambulatory surgical centers “because surgical abortion involves invasive entry into the uterus, which is sterile.”
     The district court had found the ambulatory surgical center and admitting requirements medically unjustifiable and enjoined the state from enforcing the law. That injunction was overturned by Tuesday’s ruling.
     “Texas’ stated purpose for enacting H.B.2 was to provide the highest quality care to women seeking abortions and to protect the health and welfare of women seeking abortions,” the ruling reads. “There is no question that this is a legitimate purpose that supports regulating physicians and the facilities in which they perform abortions.”
     Texas Attorney General Ken Paxton called the Fifth Circuit’s ruling upholding the law a “victory for life and women’s health.”
     “Abortion practitioners should have no right to operate their businesses from substandard facilities and with doctors who lack admitting privileges at a hospital,” Paxton said in a statement. “This ruling will help protect the health and well-being of Texas women. I am proud to have both supported this law in the legislature and defended it in the courts.”
     But women’s health groups that are challenging the law, including Whole Women’s Health that headed the original lawsuit, said the state’s mission is not to create a more healthful experience but to effectively stop providers of abortion.
     The groups say the state’s regulations are nonsensical and argue that turning clinics into hospital-scale surgery centers is expensive, unrealistic and, in some instances, impossible.
     “Not since Roe v. Wade has a law or court decision had the potential to devastate access to reproductive health care on such a sweeping scale,” Nancy Northrup, president and CEO of the Center for Reproductive Rights, whose lawyers were part of the legal team representing clinics that sued the state. “Once again, women across the state of Texas face the near total elimination of safe and legal options for ending a pregnancy, and the denial of their constitutional rights.”
     The U.S. Supreme Court last year had issued an injunction to the 2013 law, which sent it back to the appeals court for review.
     Stephanie Toti, senior counsel for the Center for Reproductive Rights, criticized the pretext upon which the Fifth Circuit based part of its ruling today – that it is too late now to challenge the state’s provision that abortions must be performed in surgical centers because opponents neglected to raise the issue with the state when it was first made into law.
     Calling the Fifth Circuit’s argument “particularly absurd,” Toti said the appeals court’s conclusion verifies the three judge panel knew their stance on the issue prior to oral arguments and before issuing a ruling and they simply wrote the ruling to fit what they wanted to say.
     The Fifth Circuit mostly affirmed the district court’s ruling, making concessions only for the Whole Women’s Health clinic in McAllen, TX, which it noted could not expand to meet surgical center requirements. Additionally, the clinic’s three staff members have been unable to obtain admitting privileges to local hospitals for reasons unrelated to their qualifications, the ruling says.
     “To sum up, we affirm in part and modify in part the district court’s injunction of the admitting privileges and ASC requirements as applied to McAllen…until such time as another licensed abortion facility becomes available to provide abortions at a location nearer to the Rio Grande Valley than San Antonio,” the ruling reads.
     Lawyers representing plaintiffs said they plan to appeal to the Supreme Court.

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