Friday, November 1, 2013

US 5th Appellate Grants Texas Stay On Abortion

Late Oct. 31st, a panel of 3 US Justices granted Texas a stay on injunctions the Federal District Court imposed on the 28th regarding new abortion laws.

On the 28th, the 5th Federal Circuit Court ruled in favor of Planned Parenthood, and others, on two provisions of the new law. The law went into effect on Oct. 29th. The provisions under injunction included one regarding that doctors performing abortive surgeries be required to have admissions privileges at an emergency hospital within 30 miles of the abortion clinic. The other provision concerned limiting the use of abortive pharmaceuticals, called a "medical abortion", to the "on-label" instructions approved by the FDA. An approved, alternate, "off-label" use allows for doctors to prescribe a lower dosage for home use, and extends the widow out to 63 days after the last menstruation.

Due to the timing of the injunctions, Attorney General Greg Abbott was able to expedite a hearing for a stay on the injunction. Planned Parenthood did not object to the motion. The 5th US Appellate Court in New Orleans reviewed the case and the arguments. They issued this 20-page opinion.

Rebuking the 5th District Court's ruling, the Appellate Court's opinion cites several previous US Supreme Court decisions. It stays the injunction on surgical abortions as well as part of  the injunction on medical abortions. Key parts of the opinion cite that it is not considered an undo burden on a mother seeking an abortion to travel to a clinic 150 miles away. The US Supreme Court previously ruled that a "24 hour rule" is constitutional and that travel time/distance for the initial consultation is not calculated into that time.

The 5th Appellate also opined that requiring physicians to have admissions privileges or contracts at hospitals is just common sense that benefits the patients. It does not increase any costs to the patient. Abortionists already tell patients to "report to an emergency room" if they have complications. The admissions contract requirement just simplifies the process for patients. Texas laws already required all other ambulatory surgery clinics (out-patient surgery clinics) to include plastic surgery and dental surgery clinics, to have admissions contracts.

The Court also stayed portions of the injunction regarding medical abortions, citing that follow-up care with the physicians are in-line with the FDA's guidance for proscribed use of abortive pharmaceuticals. However, the 5th Appellate continued the injunction regarding the limitations on medical abortions to within 49 days of the last menstruation. The Court cited that there are cases where surgical abortions, still legal at 63 days, could cause harm to mothers with certain health problems. The medical abortions would prove safer, in those cases. So, medical abortions are to be allowed up to 63 days past the end of the last menstruation.

Here are some excerpts from the 20-page opinion:

For residents of the Rio Grande Valley, it is also undisputed that physicians with hospital privileges would be available in Corpus Christi to perform abortions if H.B. 2 went into effect and that the distance from the Rio Grande Valley to Corpus Christi is less than 150 miles. In Casey, the Supreme Court considered whether a Pennsylvania statute that de facto imposed a twenty-four-hour waiting period on women seeking abortions constituted an undue burden. The Court concluded that it did not, despite the fact that it would require some women to make two trips over long distances. An increase in travel distance of less than 150 miles for some women is not an undue burden on abortion rights.

A witness for one abortion provider attempted to minimize the fact that abortion physicians would be  available in Corpus Christi even if H.B. 2 went into effect. She testified that many women from the Rio Grande Valley area who seek abortions are not citizens and their visas will not permit them to travel beyond certain checkpoints, such that travel to Corpus Christi is not an option for them. This obstacle is unrelated to the hospital - admitting - privilege s requirement. It is also undisputed that in a number of areas in Texas, physicians who are performing abortions do have admitting privileges.

It is further undisputed that under both state and federal law, hospitals are prohibited from discriminating against physicians who perform abortions in determining if admitting privileges will be extended. There is undisputed evidence that many hospitals extend admitting privileges without regard to the number of hospital admissions that a physician has had in the past. The district court did not make findings as to the number of hospitals in the Rio Grande Valley area that had annual admissions requirements. The court’s only finding was that “if required by the hospital,” abortion physicians’ practices do not generally yield any hospital  admissions. Even if some hospitals have annual dmission requirements, it is hardly surprising that the physicians identified by the plaintiffs have virtually no history of hospital admissions since the experts presented by the plaintiffs argued that it is the practice of many abortion physicians to instruct their patients to seek care from an emergency room if complications arise.

There is a substantial likelihood that the State will prevail in its argument that Planned Parenthood failed to establish an undue burden on women seeking abortions or that the hospital-admitting-privileges requirement creates a substantial obstacle in the path of a woman seeking an abortion.


Governor Rick Perry, who signed HB 2 into law in June, released this statement upon hearing the ruling on the stay:
"Today's decision affirms our right to protect both the unborn and the health of the women of Texas. We will continue doing everything we can to protect a culture of life in our state."

Planned Parenthood and their co-petitioners plan to fight the stay and reinstate the injunctions when the 5th Appellate hears the case in January, 2014.

Meanwhile, some abortion clinics are skeptical that they would be able to get into compliance and may have to close their doors, or restrict their operations to only counseling, consultation, and education.