Appeals Court: Texas Can Enforce Strict Abortion Rules for Now

The Politics of Prevention

The Politics of Prevention is an occasional series on the effects of state policy on women's health services.

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^{*Editor's note: This story has been updated throughout.} 

As it hears arguments in an appeal of a federal judge’s decision overturning new requirements for Texas abortion facilities, a three-judge panel of the U.S. 5th Circuit Court of Appeals ruled Thursday that the state could enforce the requirements in the meantime. That means eight abortion clinics across five major Texas cities will be able to stay open. 

The state had asked the conservative-leaning court for permission to enforce House Bill 2 in its entirety — including requirements that doctors performing abortions have hospital admitting privileges within 30 miles of a clinic and that clinics meet the same standards as ambulatory surgical centers — while the constitutionality of the measure remained under appeal.  

“This 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," Lauren Bean, a spokeswoman for the Texas attorney general’s office, said in a statement.

"We just won this round on HB2 in the Court of Appeals," Republican Attorney General Greg Abbott, the front-running gubernatorial candidate, tweeted.   

Attorneys for Texas abortion providers had argued the abortion law would lead to the closure of all but a handful of the state's remaining abortion facilities, putting a grave burden on women seeking the procedure across the state. They have said the court should preserve “women’s constitutional rights” and “avoid the significant health risks” that come with limited access to abortion while the appellate process runs its course.

“Today's ruling has gutted Texas women's constitutional rights and access to critical reproductive health care and stands to make safe, legal abortion essentially disappear overnight,” said Nancy Northup, president and CEO of the Center for Reproductive Rights, which is representing the abortion providers in the case. The abortion providers are “currently considering all available options” in light of the ruling, she added.

"Women should be able to make these deeply personal decisions without the intrusion of politicians like Greg Abbott, who supports making abortion illegal even in cases of rape and incest," said Democratic gubernatorial candidate Wendy Davis, who last summer filibustered the abortion law for 11 hours.

Thursday's decision is the first step in a legal battle that could continue for months. A hearing for the 5^th Circuit to consider the constitutionality of the law has not been set. 

In August, U.S. District Judge Lee Yeakel ruled in favor of abortion providers who had asked the judge to block the ambulatory surgical center provision. That ruling came three days ahead of the measure's Sept. 1 effective date. 

Yeakel also sided with the abortion providers on a separate provision of the law that requires doctors who perform abortions to have admitting privileges at a hospital within 30 miles of an abortion clinic, granting an exemption for two clinics the providers said shut down because of it: Whole Woman’s Health in McAllen and Reproductive Services in El Paso. 

As abortion providers celebrated that ruling, the state announced it would immediately ask the 5th Circuit for relief from Yeakel’s ruling. The state said it would face “irreparable harm” because it would be prevented “from enforcing a duly enacted statute,” which supporters have said was passed to help ensure the safety of women seeking abortions.

The 5th Circuit rejected the state's initial request, noting that state attorneys submitted their motion at 11:59 p.m. the day before the provision was set to take effect, leaving no time for the court to “adequately consider the motion before the scheduled effective date.”

But in its Thursday ruling, the court said the state could begin enforcing the abortion law because it had “shown a likelihood of success” that it would prove the ambulatory surgical center requirement constitutional. The opinion, written by Judge Jennifer Walker Elrod, said Yeakel’s ruling cited no evidence to support his determination that the ambulatory surgical center requirement of the law was enacted to impose an “undue burden” on women seeking abortions — the standard needed to prove the new rules unconstitutional.

Regarding the admitting privileges provision, the opinion described Yeakel’s ruling as “directly contrary to this circuit’s precedents.” The judges also found that the district court’s ruling was “inappropriate” because it granted statewide relief from the abortion law’s admitting privileges requirement even though the abortion providers had only requested an exemption for two clinics.

“Courts are not permitted to second-guess a legislature’s stated purposes absent clear and compelling evidence to the contrary,” the ruling notes.

In a statement, Amy Hagstrom Miller, the president and CEO of Whole Woman's Health, said that less than two weeks after reopening her McAllen clinic, she would again be forced to close its doors. She said Whole Woman's Health will soon be seeing Texas women in its New Mexico clinic. 

"What we have been fearing is now official: Texas faces a health care crisis, brought on by its own legislators," she said.  

This story was produced in partnership with Kaiser Health News, an editorially independent program of the Henry J. Kaiser Family Foundation, a nonprofit, nonpartisan health policy research and communication organization not affiliated with Kaiser Permanente.