The full US Court of Appeals for the Fifth Circuit on Thursday refused to rehear a March panel decision upholding HB 2, the Texas TRAP (Targeted Regulation of Abortion Providers) law that has forced 80 percent of abortion clinics in the state to close.
Only 3 of 15 judges – all Democratic-appointees – supported the application to rehear the case against two provisions of HB 2. As a result, the admitting privileges requirement as well as restrictions on medication abortion will remain in effect. Both provisions are opposed by the American Medical Association and the American College of Obstetricians and Gynecologists.
The Center for Reproductive Rights, Planned Parenthood Federation of America, the American Civil Liberties Union (ACLU), and the ACLU of Texas asked the full Court of Appeals to reexamine the constitutionality of the admitting privileges requirement and medication abortion restrictions after a Fifth Circuit panel overturned a lower court decision striking down the admitting privileges requirement as unconstitutional.
12 Republican-appointed judges of the Fifth Circuit bench voted against the petition to rehear. Judge James Dennis, a Clinton-era appointee, authored a scathing 64-page dissent on behalf of himself; Judge James E. Graves, an Obama Administration appointee; and Judge Gregg Costa, also appointed by President Barack Obama.
“In upholding Texas’s unconstitutional admitting-privileges requirement for abortion providers and medication-abortion restrictions, the panel opinion flouts the Supreme Court’s decision in Planned Parenthood of Southeastern Pennsylvania. v. Casey, 505 U.S. 833 (1992), by refusing to apply the undue burden standard expressly required by Casey,” wrote Judge Dennis. “If not overruled, the panel’s sham undue burden test will continue to exert its precedential force in courts’ review of challenges to similar types of recently minted abortion restrictions in Texas, Louisiana, and Mississippi.”
Dennis said the Court’s failure to properly apply Casey to defend the due process rights of women seeking a safe and legal abortion threatened to “annihilate the constitutional protections afforded women under Roe [v. Wade].”
“Texas now stands at the epicenter of a national health care crisis brought on by politicians who have all but eliminated access to safe and legal abortion care for countless women, leaving many with only unsafe and unregulated options that may very well threaten their lives,” said Nancy Northup, President and CEO of the Center for Reproductive Rights, about the decision. “This is a threat to the well-being of millions of women, and an affront to the promise of equal rights and legal protection for all Americans. It is increasingly clear that either the Supreme Court or Congress needs to step in to protect the rights of women across the nation from this relentless assault on their dignity, health and rights.”
Last week, the Center for Reproductive Rights filed an emergency application with the US Supreme Court – in a separate legal challenge to HB 2 – to block application of the Texas law’s admitting privileges and ambulatory surgical center requirements, as applied to clinics in West Texas and the Rio Grande Valley. That application, brought before Justice Antonin Scalia, is still pending. Justice Scalia could issue a direct order himself, or refer the petition to the full Supreme Court.
Before the enactment of HB 2, Texas had 44 abortion clinics. That number has now been cut to 8. The Rio Grande Valley has not one abortion provider, and nearly one million Texas women of reproductive age must now travel 300 miles round-trip to to exercise their right to a safe and legal abortion.
Media Resources: Center for Reproductive Rights 10/9/14; US Court of Appeals for the Fifth Circuit 10/9/14; Feminist Newswire 10/7/14