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Texas Abortion Fight Heads to Supreme Court

(CN) - Planned Parenthood asked the Supreme Court on Monday to reinstate an order barring Texas from implementing part of a new law that places tighter restrictions on doctors who perform abortions.

In its appeal to Supreme Court Justice Antonin Scalia, the provider argued that "in just the few short days since the injunction was lifted, over one-third of the facilities providing abortions in Texas have been forced to stop providing that care and others have been forced to drastically reduce the number of patients to whom they are able to provide care."

Planned Parenthood and other health clinics want the high court to vacate Thursday's decision by the 5th Circuit to lift an injunction barring a challenged section of Texas House Bill 2 from taking effect last week.

H.B. 2, which Gov. Rick Perry signed into law this summer, bans abortions after 20 weeks, requires doctors performing abortions to have admitting privileges at local hospitals, imposes a U.S. Food and Drug Administration-approved drug regimen for medication-induced abortions and requires abortion clinics to meet the same standards of ambulatory medical centers.

The controversial legislation prompted an 11-hour filibuster by Democratic state Sen. Wendy Davis, who last month declared her candidacy for Texas governor.

Planned Parenthood and several affiliated health clinics sued state officials on Sept. 26, claiming the admitting privileges mandate and the medication abortion restriction place unconstitutional burdens on women seeking abortions.

After a three-day trial, U.S. District Judge Lee Yeakel blocked enforcement of the admitting privileges provision, saying such privileges "have no rational relationship to improved patient care" and "do not rationally relate to the state's legitimate interest in protecting the unborn."

He upheld the second provision, however, which requires providers of drug-induced abortions to follow a regimen approved in 2000 by the U.S. Food and Drug Administration.

In granting the state's emergency motion to stay pending appeal, the federal appeals court said the state would likely prevail in its claim that the provisions are not overly burdensome.

Judge Priscilla Owen, writing for the panel, disagreed with Yeakel's conclusion that the admitting privileges provision would leave 24 counties in the Rio Grande Valley with no abortion provider.

"To place the district court's findings with regard to 24 counties in the Rio Grande Valley into perspective, there are 254 counties in Texas, and Planned Parenthood's evidence showed that well before H.B. 2 was to take effect, abortions were performed in only 13 counties in Texas," Owen wrote. "There was evidence offered by Planned Parenthood that more than 90 percent of the women seeking an abortion in Texas would be able to obtain an abortion from a physician within 100 miles of their respective residences even if H.B. 2 went into effect. This does not constitute an undue burden in a large fraction of the relevant cases."

The 5th Circuit also stayed a portion of the injunction that created a "health exception" to the law's regulation of drug-induced abortions, calling the order "overly broad."

"Pending appeal, we stay the injunction in the final judgment pertaining to medical abortions with this exception: the district court's injunction continues to apply pending appeal with respect to a mother who is 50 to 63 days from her last menstrual period if the physician who is to perform an abortion procedure on the mother has exercised appropriate medical judgment and determined that, due to a physical abnormality or preexisting condition of the mother, a surgical abortion is not a safe and medically sound option for her," the ruling states.

Planned Parenthood directed its appeal to Scalia, the circuit justice for the region that includes Texas.

It claims the circuit court "relied almost entirely on its determination that [the state] would prevail on the merits -- a determination that misapplied this court's precedents, rendering the constitutional right to abortion illusory for nearly one in three Texas women who would exercise that right, and as a result has already wreaked substantial harm on women who are now being prevented from obtaining an abortion, in violation of their fundamental constitutional rights."

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