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5th Circuit Court Weighs Abortion Rules

While Texas awaits a decision by the 5th Circuit Court of Appeals on the state's abortion regulations, the strict new rules that have forced some facilities to stop performing the procedure remain in effect, leaving swaths of the state without a nearby provider.

While Texas awaits a decision by the 5th Circuit Court of Appeals on the state's abortion regulations, the strict new rules that have forced some facilities to stop performing the procedure remain in effect, leaving swaths of the state without a nearby provider. 

Plaintiffs in the case have specifically challenged the constitutionality of two requirements: that physicians obtain hospital admitting privileges within 30 miles of an abortion facility, and that they follow the U.S. Food and Drug Administration’s protocol for drug-induced abortions, rather than a common, evidence-based protocol. Additional rules that require all abortions to be performed in ambulatory surgical centers starting in September and that ban abortions at 20 weeks of gestation remain unchallenged.

On Monday, a three-judge panel on the 5th Circuit gave both sides 20 minutes for oral arguments. The state argued that the rules should be deemed constitutional by the federal court because there isn’t enough evidence to suggest that they create an undue burden on the majority of Texas women attempting to access abortion.

Meanwhile, an attorney for the Center for Reproductive Rights, who argued on behalf of the majority of abortion providers in the state, asserted that the new rules are unconstitutional because some abortion facilities can no longer perform the procedure and women in South Texas, the Panhandle and other areas of the state are being forced to travel long distances to seek abortions.

The three-judge panel includes former Chief Justice Edith Jones, who authored the 2012 opinion affirming Texas' abortion sonogram law. The other justices, Jennifer Elrod and Catharina Haynes, served on another three-judge panel that reversed a lower court's injunction on the law in October, which allowed the rules to take effect. 

On Twitter, observers of the hearing seemed to concur that the judges were leaning in the state’s favor.

Although a spokeswoman for the Center for Reproductive Rights said her organization anticipates a swift ruling, the appeals court could take weeks or months to decide the case. In 2012, the 5th Circuit ruled on a lawsuit regarding Texas’ abortion sonogram law five weeks after oral arguments.

Jonathan Mitchell, the state’s attorney, disputed the plaintiffs’ evidence that a third of Texas abortion facilities would be forced to close. When the new rules took effect on Nov. 1, 14 of 36 abortion facilities in Texas were initially unable to continue performing the procedure because of the hospital admitting privileges requirement. Physicians at three clinics — Whole Woman’s Health in Fort Worth, Planned Parenthood in Austin and Abortion Advantage in Dallas — have since gained hospital admitting privileges.

Dr. Joseph Potter, lead researcher with the Texas Policy Evaluation Project, a three-year study at the University of Texas at Austin evaluating the impact of the state’s family planning policies, estimated that some 20,000 women would lose access to abortion as a result of the new law. His group's research indicated that a third of the state’s abortion facilities would not be able to perform abortions when the law initially took effect because they did not have a physician on staff with hospital admitting privileges.

The new rules have had an acute impact on the Rio Grande Valley. Both abortion clinics in South Texas were forced to stop providing the procedure because hospitals in the area have so far refused to grant an abortion doctor admitting privileges. That means the closest abortion facility is now in Corpus Christi, which is more than 100 miles away from McAllen and Harlingen.

The American College of Obstetrics and Gynecologists and the American Medical Association have filed a "friend of the court" brief in support of the plaintiffs.  

The law "does not serve the health of women in Texas, but instead jeopardizes women’s health by restricting access to abortion providers and denying women well-researched, safe, evidence-based and proven protocols for the provision of medical abortion,” the groups wrote in the brief.

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