March 25, 2023

Full Fifth Circuit won’t hear Texas abortion case

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Abortion-TexasBy Tony Mauro, The National Law Journal

The U.S. Court of Appeals for the Fifth Circuit decided Thursday that it won’t give full court review to an appeals panel’s decision last week that allowed restrictions on Texas abortion clinics to take effect.

The appeals court’s decision gives a green light to the provision requiring clinic doctors to obtain admitting privileges at nearby hospitals. Judge James Dennis, one of three judges who wanted en banc review, wrote an angry 62-page dissent.

“This court’s abject deference to state authority annihilates any ‘real substance’ to the vital individual constitutional interest at stake,” Dennis wrote, asserting that the court had “flouted” the U.S. Supreme Court’s precedent barring laws that impose “undue burden” on women’s right to abortions.

Judges James Graves Jr. and Gregg Costa also favored en banc review. Twelve judges voted against it.

Women’s rights groups sharply criticized the circuit ruling for allowing what they called unconstitutional Texas legislation to survive. “Today’s decision demonstrates, once again, that this court is unwilling to place any limits whatsoever on politicians who are intent on shutting down clinics and preventing women from getting abortions,” said Jennifer Dalven, director of the American Civil Liberties Union Reproductive Freedom Project.

“These politicians have turned the reproductive health care system across huge expanses of the U.S. into a tattered patchwork. Women’s constitutional rights and access to safe, legal abortion care now differ wildly depending on their ZIP code,” said Nancy Northup, president of the Center for Reproductive Rights, which represents the Texas clinics.

Abortion rights opponents applauded the Fifth Circuit’ affirmation of the Texas law. “Women deserve real doctors, not transient abortionists who have no connection to their patients or their communities,” said Casey Mattox, senior counsel at Alliance Defending Freedom. The appeals court, he said, “has affirmed that the health and safety of women is more important than an abortionist’s bottom line–including the bottom line of Planned Parenthood, the nation’s largest abortion seller.”

The Fifth Circuit’s action came on the same day that Texas urged the U.S. Supreme Court not to halt enforcement of restrictions that include a requirement that clinics meet costly standards for ambulatory surgical centers.

“Abortion remains widely available in Texas,” state solicitor general Jonathan Mitchell told the high court. He was responding to claims by abortion rights groups in Whole Women’s Health v. Lakey that the closure of clinics caused by the Texas law is making abortions out of reach for large numbers of women in the state.

As a result of the law, the abortion-rights groups told the Supreme Court earlier this week, “there are just seven [open clinics,] clustered in the four largest metropolitan areas in the eastern part of the state. There are no longer any licensed facilities providing abortions south or west of San Antonio, an area larger than most states.”

Mitchell wrote, “The plaintiffs’ application relies on vague hyperbole at the expense of data and evidence.”

The immediate fate of the law is now in the hands of Justice Antonin Scalia, the court member who handles emergency appeals from the Fifth Circuit. He could rule himself or refer the case to the full court.

IMAGE: Supporters of an abortion bill cheer during an anti-abortion rally at the Texas Capitol, Monday, July 8, 2013, in this file photo. Photo: Eric Gay/AP

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