AUSTIN, Texas (AP) — A federal appeals court weighed whether to grant an emergency motion Tuesday that would allow some new Texas abortion restrictions to take effect, the latest step in a lengthy battle activists on both sides predicted would end up before the U.S. Supreme Court.
Texas leaders urged the panel to quickly hear their appeal of a judge’s ruling Monday striking down a requirement that doctors performing abortions must have admitting privileges at a hospital within 30 miles of their clinic.
He agreed with abortion-rights activists that the restriction, which was to be enforced starting Tuesday, placed an unconstitutional burden on women seeking an abortion and didn’t make the process safer, as state officials had argued.
Texas Attorney General Greg Abbott immediately appealed the ruling to the conservative 5th Circuit Court of Appeals in New Orleans. The first order of business for the court was to decide whether to grant an emergency motion to allow that and another part of the new law to take effect Tuesday as scheduled.
The provision, part of a large package of abortion limits the Legislature approved in July, would effectively force the closure of about a third of the state’s 32 abortion clinics — some the only facility within hundreds of miles where women can get an abortion. Abortion rights supporters argued most hospitals will not grant abortion doctors admitting privileges for religious, business or competitive reasons.
Before filing his appeal, Abbott — a Republican candidate for Texas governor — said he expected the case to reach the U.S. Supreme Court. Federal judges have issued temporary injunctions against similar laws requiring admitting privileges in Alabama, Kansas, Mississippi and Alabama, but this is the first case to get a final written decision from a district court.
For that reason, University of Richmond law professor Carl Tobias said the 5th Circuit might expedite the case, but he questioned whether the Supreme Court has the appetite to consider an abortion case, and if so, would take this particular one.
The 1973 Roe v. Wade decision, which determined women have a right to abortion, has largely stood as legal precedent the past four decades, with the Supreme Court only occasionally wading in to clarify constitutional questions stemming from it. The last significant abortion ruling came in 2007, when the high court upheld a ban on partial-birth abortion that Congress approved and President George W. Bush signed into law four years earlier, Tobias said.
“This is important, but it doesn’t strike me as central to … overturning Roe v. Wade,” Tobias said of the Texas admitting privileges law.
Should the 5th Circuit disagree with the judge and allow the law to stand, it would be the latest in a long list of measures approved by Texas lawmakers and overturned by Austin judges, only to be allowed on appeal.
In court papers, Abbott and his legal team argued that District Judge Lee Yeakel overstepped his authority and misapplied the law.
“The district court took that extraordinary step without citing — much less purporting to satisfy — the constitutional standard” for making its decision, the Texas court filing said.
Janet Crepps, an attorney for the Center for Reproductive Rights representing the abortion clinics, said Abbott’s brief relied primarily on legal arguments while her response centered on the practical effects of the law.
“If the injunction is lifted, literally thousands of women in Texas will no longer be able to access abortions,” she said. “That’s a huge harm, and there is no interest on behalf of the state that justifies denying the constitutional rights of all of those women.”
Abbott asked the 5th Circuit to expedite the appeals process, but the soonest the court could consider the case is January.
As part of the ruling Monday, Yeakel, a Bush appointee, also found the Texas Legislature could dictate how doctors administer abortion-inducing drugs. However, he blocked a new drug requirement because he said it failed to allow doctors to adjust treatment in order to best protect the health of women taking it.
Planned Parenthood and the other abortion providers who filed suit did not challenge a ban on abortion 20 weeks into a pregnancy, a provision that took effect Tuesday, and a requirement starting next October that all abortions must be performed in a surgical center.
A handful of protesters gathered Tuesday morning near the Whole Woman’s Health Clinic in McAllen, on the Mexico border.
Herb Moering said he has been protesting at the clinic twice a week for four or five years. Until Monday’s ruling, he thought his days on the downtown street corner might be coming to an end. The 77-year-old complained of “liberal” judges.
Moering said he’ll be there “as long as women come and think their best option is abortion.”
If the two clinics providing abortions in the Rio Grande Valley were forced to close, women living along the Texas-Mexico border would have to travel nearly 250 miles to San Antonio.
Some women in West Texas would have to travel even farther — about 300 miles to Waco or El Paso — should the sole abortion clinic in Lubbock be forced to close.
Beth Shapiro, chairwoman of the board of directors of the Planned Parenthood Health Center in Lubbock, said she fears women in need of abortion will resort to illegal and unsafe methods if the clinic is forced to stop providing abortions.
“I think it’s always a possibility that when we limit access to abortion we are going to go back,” she said. “People will resort to pre-Roe v. Wade strategies to perform abortion — back alley procedures, which are far more dangerous than having a safe, legal abortion, a medically controlled abortion.”