AUSTIN, Texas (CNS) — A panel of judges on the 5th U.S. Circuit Court of Appeals ruled Oct. 31 that a provision in a Texas law requiring abortion doctors to have admitting privileges at a nearby hospital can take effect.
The panel made the ruling three days after Judge Lee Yeakel of the U.S. District Court in Austin said the provision was unconstitutional.
The judges on the 5th Circuit said the provision can be carried out while a lawsuit challenging the abortion law’s restrictions moves forward.
The U.S. Supreme Court, they said, has held that having “the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate” a law that serves a valid purpose, “one not designed to strike at the right itself.”
Yeakel argued that requiring admitting privileges would unreasonably limit a woman’s access to abortion. The provision, he said in his ruling, was “without a rational basis and places a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”
His decision was appealed by Texas Attorney General Greg Abbott, who argued that the state Legislature was well within its constitutional rights to require admitting privileges.
“We were disappointed in part of (Yeakel’s) ruling,” said Jeff Patterson, executive director of the Texas Catholic Conference, in an Oct. 29 telephone interview with Catholic News Service.
“But the one thing I think the Catholic bishops would want to underscore to people is that most of the bill that was passed by the Legislature was upheld,” Patterson said.
Yeakel upheld a second provision that requires doctors to use a particular drug protocol in nonsurgical, medication-induced abortions.
The Texas law requires doctors to use a protocol approved by the Food and Drug Administration in 2000, which allowed the use of higher doses of the medication through the seventh week of pregnancy. Yeakel ruled that requiring the protocol did not pose an unconstitutional obstacle, except in cases where the new regimen appeared necessary to save the life or health of the mother.
The regimen calls for two drugs to be used to induce an abortion, and the Texas law requires they be administered in person by a doctor within the first 49 days of pregnancy as determined by the woman’s last menstrual period.
Yeakel did find — and the 5th Circuit did leave in place this finding — that an exception to the state-mandated use of abortion-inducing drugs would be allowable for a subset of women whose physicians’ “sound medical opinion” say that a newer regimen would be the only viable option for women needing abortion between the 50th and 63rd days of pregnancy.
“Planned Parenthood and the pro-abortion community were quick to say (Yeakel’s decision) was a huge overturning of the law when it was nothing of the sort,” Patterson told CNS.
The suit, brought by the American Civil Liberties Union, the Center for Reproductive Rights, Planned Parenthood and the owners of abortion clinics in Texas, did not challenge a ban on nearly all abortions starting at 20 weeks after conception. The ban took effect Oct. 29.
Also not challenged in the suit was a provision that all abortion clinics meet the standards of ambulatory surgery centers. The provision does not take effect until next September.
Yeakel, in his ruling, said the ultimate decision on the law would not be reached by him, but “by either the (5th) Circuit or the Supreme Court of the United States.”
The 5th Circuit’s Oct. 31 ruling means that up to 12 of Texas’ 36 abortion clinics will not be able to perform abortions. The circuit court’s order is temporary, however, until the full court can hold a hearing in January.
Admitting-privileges provisions had been blocked earlier by courts in Alabama, Mississippi, North Dakota and Wisconsin.
The drug-protocol provision is still legal in Ohio, but it was thrown out by courts in North Dakota and Oklahoma.
The 20-weeks requirement has been adopted in 12 states, but it was rejected by the court in the three states where it was subject to a legal challenge.
The U.S. Supreme Court Nov. 4 reversed its decision to consider an appeal of a ruling that tossed out Oklahoma’s drug-protocol provision. The Oklahoma Supreme Court said Oct. 29 that the drug-protocol provision in the state’s abortion law “effectively bans all medication abortions” and therefore is unconstitutional. Last December, it upheld a lower court’s ruling that tossed out the protocol provision as unconstitutional for creating an “undue burden” on a woman’s ability to obtain an abortion.
The U.S. Supreme Court had agreed in June to hear the case, pending responses from the state Supreme Court to two questions, related to the use of mifepristone under a protocol approved by the FDA and to treat ectopic pregnancies. The high court put further proceedings on hold until the state court replied.
In written orders, the Supreme Court said the Oklahoma case had been “improvidently granted,” with no further comment.
Oklahoma Attorney General Scott Pruitt said the state Supreme Court again misinterpreted the aim of the provision, which he said is to protect Oklahoma women from “harmful outcomes” that could result from off-label uses of abortion drugs.