Abortion Access in Texas Receives Another Blow

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Whole Woman's Health San Antonio is the city's only ambulatory surgical center licensed to perform abortions under House Bill 2.

The Fifth Circuit Court of Appeals announced mid-day Thursday it would not reconsider a decision made earlier this spring to uphold two provisions of Texas' sweeping abortion law. In dealing another blow to abortion access in Texas, the decision leaves in place the law's requirement that physicians performing abortions obtain admitting privileges at local hospitals, as well as outdated procedures required of physicians when administering medication abortions.

This is part of the first challenge to Texas' House Bill 2, which wound its way through the courts in late 2013 and early 2014.  The admitting privileges requirement led to the closure of several abortion clinics statewide once it took effect last year.

Twelve justices voted against rehearing the case, and Justice Edith Jones offered no real explanation as to why. However, Justice James Dennis crafted a scathing 62-page dissenting opinion, ripping apart the court's application of the "undue burden" standard, a legal test first established in the 1992 abortion case Planned Parenthood v. Casey.

In both this case against House Bill 2, and in the second challenge to the law, the judges on the Fifth Circuit have maintained that the law's requirements do not present an undue burden for Texas women seeking an abortion, and Dennis warns that that application of the standard will reverberate across states without a review from the full court and will threaten a woman's right to an abortion established by the landmark 1973 case Roe v. Wade.

"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 writes. "...In disclaiming its duty to correct the panel’s perversion of the undue burden standard, a majority of this court effectively ensures that laws, like the Texas law challenge here, that substantially chop away at a woman’s right to a previability abortion, will be given only a modicum of scrutiny, essentially giving states carte blanche with respect to the regulation of the right to an abortion."

Meanwhile, in the second challenge to Texas' abortion law, the state of Texas has filed a response to Monday's request by the plaintiffs that the Supreme Court of the United States block the ambulatory surgical center provision from taking effect, as well as the admitting privileges requirement as applied to a clinic in McAllen and another in El Paso, pending a full appeal.

In their application, lawyers on behalf of the independent abortion providers challenging the law wrote that the court was "demonstrably wrong" in its opinion that the provisions don't present an undue burden for women seeking abortions, particularly those in south and west Texas where no clinic exists and women are forced to travel hundreds of miles for the procedure. The State, in its response, challenged the plaintiffs and called their request "unwarranted," urging that the provisions remain in effect.

Now, it's up to the Supreme Court to intervene and stop the restrictions from taking effect. Lawyers say it's impossible to predict when SCOTUS will respond. When plaintiffs in the first challenge to the law asked the high court to step in, it took about two weeks to hear back.

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