5th Circuit Denies HB 2 Rehearing

In another devastating but anticipated blow to Texas reproductive rights, the full 5th Circuit Court of Appeals denied a request made by abortion providers to rehear their initial case against the state’s four-part abortion law, House Bill 2.

The first suit, filed in September 2013 by the Center for Reproductive Rights, the ALCU of Texas, Planned Parenthood and a dozen abortion clinics, challenged two of the law’s provisions – the requirement that doctors must obtain admitting privileges at a hospital no further than 30 miles of where the abortion procedure is performed and a measure that compels physicians to adhere to outdated medical protocol when administering abortion-inducing pharmaceutical drugs. Plaintiffs argued these rules violate due process, equal protection, and place an undue burden on abortion-seeking women.

Two days before the law was set to take effect, U.S. Judge Lee Yeakel ruled the admissions privileges rule carried no "rational basis" and concluded it imposed an undue burden on women seeking to abort. The state subsequently appealed Yeakel’s ruling, sending it to a three-judge panel on the conservative 5th Circuit Court of Appeals. The appellate Court concluded the state would likely win its appeal and allowed immediate enforcement of the law. They redoubled their defense of the law in March, calling Yeakel’s ruling “vague and imprecise,” and downplaying the law’s burden on women. At the time, roughly 20 clinics ceased operations either in preparation for the law’s regulations or after it took effect. To date, only eight clinics remain in the state as a result of the full impact of the law's four provisions.

Plaintiffs took another shot at halting HB 2 by appealing to full 5th Circuit (“en banc”) instead of just a three-judge select panel; but Thursday’s 12-3 decision to decline their request, with little explanation, proved yet again the New Orleans circuit court is far from sympathetic to pro-choice rights. However, Justice James Dennis, appointed to the bench by President Bill Clinton, notably offered a scathing and strongly worded 62-page “emphatic” dissent. Dennis accuses the panel of applying what amounts to a “rational basis test” under the “guise” and “sham” of a undue burden test. If applied properly, the undue burden standard would sufficiently show the two provisions create severe obstacles for women, he wrote.

“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 pre-viability 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,” writes Dennis. “This court’s abject deference to state authority annihilates any 'real substance' to the vital individual constitutional interest at stake: the urgent claims of the woman to retain the ultimate control over her destiny and her body, claims implicit in the meaning of liberty.”

In related news, Attorney General Greg Abbott delivered a 66-page defense of HB 2 in response to abortion providers’ recent appeal to the U.S. Supreme Court – seen as a final avenue to end HB 2 after a second attempt at halting the law recently failed at the hands of the 5th Circuit. The second suit challenges regulations that force clinics to comply with the same building standards as ambulatory surgical centers, and the admitting privileges rule as it applies to two recently closed clinics in underserved communities, the Whole Woman's Health Clinic of McAllen and Reproductive Services of El Paso.

Abbott callously described the barriers to obtain abortion access created by the omnibus law as simply “an inconvenience, but still a manageable one” for women in the largely impoverished Rio Grande Valley and thus, not a undue burden. Most women still live “within comfortable driving distance (150 miles)" of an abortion provider, he agued. “Behind the plaintiffs' impassioned rhetoric, this case is more about who will be performing abortions in Texas than it is about whether they will be performed,” Abbott wrote in the lengthy memo.