The cheers of victory over a narrow injunction against Texas’ new law restricting late-term abortions and requiring abortion clinics to adhere to the same standards as other outpatient surgical centers was short-lived. Last night, the 5th Circuit overturned a district court ruling that suspended the latter provision, which means that some clinics will start closing as early as today:
A federal appeals court on Thursday ruled that most of Texas’ tough new abortion restrictions can take effect immediately – a decision that means as least 12 clinics won’t be able to perform the procedure starting as soon as Friday.
A panel of judges at the 5th Circuit Court of Appeals in New Orleans said the law requiring doctors to have admitting privileges at a nearby hospital can take effect while a lawsuit challenging the restrictions moves forward. The panel issued the ruling three days after District Judge Lee Yeakel said the provision serves no medical purpose. …
In its 20-page ruling, the appeals court panel acknowledged that the provision “may increase the cost of accessing an abortion provider and decrease the number of physicians available to perform abortions.” However, the panel said that the U.S. Supreme Court 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.”
The panel left in place a portion of Yeakel’s order that prevents the state from enforcing the U.S. Food and Drug Administration protocol for abortion-inducing drugs in cases where the woman is between 50 and 63 days into her pregnancy. Doctors testifying before the court had said such women would be harmed if the protocol were enforced.
It’s safe to say that this provision now upheld, at least temporarily, by the appellate court was one of the main motivations in passing the law. The Texas legislature drafted the bill in response to the Kermit Gosnell horror in Pennsylvania, where lax regulation and non-existent enforcement created a charnel house that took the lives of infants born alive and at least one mother. The requirement that abortionists meet the same level of professionalism and regulation as any other outpatient surgical center is a no-brainer.
This is, however, only a temporary order that allows immediate enforcement. The district court will still consider the case proper early next year, on the two narrow issues of the lawsuit. So far, there has been no serious challenge to the limitation of abortion to 20 weeks from its previous 24-week limitation, and none would be likely to succeed anyway.