In a major setback for abortion rights advocates, a federal appeals court on Tuesday upheld most of a 2013 Texas law that imposes tough regulations that forced roughly half of the state’s abortion clinics to close down.
The decision sets the stage for an expected petition to the US Supreme Court and a potential landmark case testing the limits of newly enacted abortion-clinic restrictions against a woman’s constitutional right to choose to end her pregnancy.
The three-judge panel of the New Orleans-based Fifth Circuit Court of Appeals reversed a broad injunction issued last year by a federal judge in Texas who had blocked most of the law's provisions.
The appeals court said the judge had failed to follow existing Fifth Circuit precedent when he issued a sweeping ruling, striking down the regulations “as applied to all women seeking a previability abortion.”
The appeals court action upholds two key provisions of the Texas law. One requires doctors performing abortions to obtain admitting privileges at a hospital within 30 miles of the clinic.
The other requires clinics to undertake a potentially expensive upgrade of their facilities to meet the high medical standards of an ambulatory surgical center.
Clinics in Texas unable to meet those requirements have had to close their doors. Today, there are seven clinics serving the state’s 5.4 million women of childbearing age.
Nancy Northup, president of the Center for Reproductive Rights in New York City, said the plaintiffs would appeal to the Supreme Court.
“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,” Ms. Northup said in a statement.
“Once again, women across the state of Texas face elimination of safe and legal options for ending a pregnancy, and the denial of their constitutional rights,” she said.
Texas Gov. Greg Abbott (R) praised the appeals court’s decision.
“This unanimous decision is a vindication of the careful deliberation by the Texas legislature to craft a law to protect the health and safety of Texas women,” he said in a statement.
In its ruling on Tuesday, the appeals court granted exemptions from the law for a clinic in McAllen that serves four counties in the state’s Rio Grande Valley.
The court found that if the McAllen clinic closed, local women would have to drive 235 miles to obtain an abortion. That distance, the court said, would impose a substantial obstacle to obtaining an abortion, it said.
The court also excused the McAllen clinic from having to comply with some of the required upgrades. And it blocked enforcement of the admitting-privileges requirement against clinic physicians in McAllen.
Nonetheless, the appeals court declined to enjoin enforcement of the regulations against a clinic in El Paso.
Women’s health groups suing to block the law had argued that if the El Paso clinic closed, women would have to drive 550 miles to reach the nearest abortion clinic in Texas. (The nearest Texas-based clinic is in San Antonio.)
But the appeals court said El Paso women also have the option of driving 12 miles west across the state border to an abortion clinic in Santa Teresa, N.M.
In its 56-page decision, the appeals court chastised the lower court judge for granting the plaintiffs more relief “than anyone requested or briefed.”
“Not only was it inappropriate for the district court to grant unrequested relief in a constitutional challenge to a state law, but in so doing, the district court also ran directly afoul of the holding and mandate of [an existing Fifth Circuit precedent],” the appeals court said.
The challenged Texas law, HB 2, is among scores of newly enacted regulations passed by conservative lawmakers in various states.
More are coming. In the first three months of 2015, more than 330 abortion restrictions were introduced in 43 states, according to the American Civil Liberties Union.
“My heart breaks for the women and families of Texas,” Jennifer Dalven of the ACLU’s Reproductive Freedom Project said in a statement.
“This law was designed for one purpose: to keep a woman who has decided to get an abortion from getting one,” she said. “It’s bad medicine, created by politicians and not doctors, and it’s deeply disappointing that the court has chosen to ignore women in favor of political maneuvering.”
Texas Attorney General Ken Paxton said the appeals court ruling was a victory for life and for women’s health.
“HB 2 both protects the unborn and ensures Texas women are not subjected to unsafe and unhealthy conditions,” the attorney general said.
“Today’s decision by the Fifth Circuit validates that the people of Texas have authority to establish safe, common-sense standards of care necessary to ensure the health of women,” he said in a statement.
The appeals court noted a sharp disagreement over the purpose of the Texas regulations.
“Texas’s stated purpose for enacting HB 2 was to provide the high quality of care to women seeking abortions and to protect the health and welfare of women seeking abortions,” the appeals court said.
It noted that the district judge disagreed with this view.
“The district court found that this was not the real purpose of the law and instead concluded that the ambulatory-surgical center requirement was intended to close existing licensed abortion clinics,” the appeals court said.
The appeals court ultimately disagreed, even though the clear effect of the law will be to close many clinics.
“Plaintiffs bore the burden of proving HB 2 was enacted with an improper purpose,” the court said. “They failed to proffer competent evidence contradicting the legislature’s statement of a legitimate purpose.”
They are arguments that may soon move to the nation’s highest court.
“The Supreme Court’s prior rulings do not allow for this kind of broadside legislative assault on women’s rights and health care,” Northup said. “We now look to the justices to stop the sham laws that are shutting clinics down and placing countless women at risk of serious harm.”