By Chuck Lindell, Austin American-Statesman
AUSTIN, Texas — A federal appeals court Thursday declined to reconsider a March decision that allowed Texas to require abortion doctors to gain admitting privileges in a nearby hospital.
Abortion providers had asked the full 5th U.S. Circuit Court of Appeals to review the unanimous decision by a three-judge panel, arguing that some doctors have been unable to comply, forcing clinics to close and placing an unconstitutional burden on women seeking an abortion.
That request was denied, without elaboration, 12-3.
However, the order included an unusually long and forceful 62-page dissent by Justice James Dennis, who said the court’s original decision to allow the admitting privileges rule “flouts” standards established by the U.S. Supreme Court to determine when abortion regulations pose an undue burden on women.
“If not overruled,” Dennis wrote, “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,” the states in the 5th Circuit’s district.
“A majority of this court effectively ensures that laws, like the Texas law challenge here … will be given only a modicum of scrutiny, essentially giving states carte blanche with respect to the regulation of the right to an abortion,” he wrote.
The original ruling, Dennis said, “warrants correction by the Supreme Court.”
Abortion providers — including Planned Parenthood, seven abortion clinics and three abortion doctors — are expected to appeal to the Supreme Court, their last recourse to challenge the admitting privileges regulation and another provision, also upheld by the 5th Circuit, that limited how abortion-inducing drugs are dispensed.
The case was separate from a second challenge to Texas abortion regulations contained in House Bill 2, passed in 2013 in the second of two contentious special legislative sessions. That challenge, focusing on requirements that abortion clinics meet the same standards as ambulatory surgical centers, is pending before the 5th Circuit.
Last week, the appeals court allowed Texas to enforce the surgical-center requirement while justices weigh the constitutionality of the rule, leaving only seven abortion clinics operating in Texas. Abortion providers responded by asking the U.S. Supreme Court to bar Texas from enforcing the surgical-center rule, which would allow more than a dozen clinics to reopen during the appeals process.
Both HB 2 cases revolve around the “undue burden” test established in 1992 by the U.S. Supreme Court in Planned Parenthood v. Casey.
The Casey decision reaffirmed the right to an abortion but also recognized that states have a legitimate interest in protecting the health of women and the life of the fetus. To strike a balance between the competing interests, the Casey ruling said states cannot adopt regulations that unduly burden a woman’s ability to choose an abortion.
In its March decision upholding HB 2’s admitting privileges regulation, the three-judge panel said abortion providers failed to prove that forcing some clinics to close would sufficiently limit access to abortion.
“More than 90 percent of the women seeking an abortion in Texas would be able to obtain the procedure within 100 miles of their respective residences even if HB 2 went into effect,” the panel ruled. “The regulation will not affect a significant — much less ‘large’ — fraction of such women.”
In Thursday’s dissent, Dennis wrote that the three-judge panel “failed to weigh the magnitude of the burden … against the strength of the state’s justification for the law.” Evidence showed that having admitting privileges does not improve medical care and thus cannot justify the increased burden on women, he wrote.
All three dissenters — including judges James Graves Jr. and Gregg Costa — were appointed by Democratic presidents.
Ten of the 12 justices who declined to reconsider the original ruling were nominated by Republicans.
Photo: Glenn~ via Flickr