Some 13 abortion clinics in Texas will reportedly close after a federal appeals court ruled in favor of the state Thursday to fully enforce a new law that requires abortion facilities to meet the same health and safety standards as ambulatory surgical centers.
In a 38-page decision published Thursday, a three-judge panel of the United States Court of Appeals for the Fifth Circuit in New Orleans, granted in part, a motion filed by the state of Texas to stay a district court's injunction against the law, and finds that the law is constitutional and does not place an undue burden on abortionists and women seeking abortions.
The decision overrides District Judge Lee Yeakel's August ruling, which stated that requiring abortion clinic owners to meet the same standards as ambulatory surgical centers, such as widening doorways to enable paramedics to bring stretchers into the clinic to transport patients to the hospital, is too costly and, therefore, "imposes an undue burden on women seeking an abortion," and was "unconstitutional."
Abortion clinic owners had one year to upgrade their facilities to meet the basic requirements of the law, which includes having adequate plumbing, heating, lighting and ventilation, and equipment that can properly sterilize surgical instruments; ensuring that the doors to the facilities can accommodate stretchers for emergencies; and to maintain a sanitary facility to ensure the health and safety of patients.
In allowing the injunction against Texas' abortion law, Yeakel ruled that requiring abortion clinics to meet the same standards as ambulatory surgical centers, along with requiring abortionists to have admitting privileges at a hospital within 30 miles of their clinics, would "create a brutally effective system of abortion regulation."
On Thursday, however, the three-judge panel for the Fifth Circuit sided with Texas state lawyers in agreeing that claiming that a "large fraction" of women seeking abortions would face an unconstitutional burden because of the safety upgrades and the hospital admitting privileges requirement, is insufficient grounds for blocking the law.
The judges granted the stay pending a full appeal from state lawyers but highlighted that based on the evidence presented by the state they believe Texas is likely to prevail over challengers of the law.
If the state wins, abortion clinic owners will be required to upgrade the facilities that are not in compliance with the law (if they choose to remain open), at a combined estimated cost of $1.5 million, or only $45,000 to $115,000 per clinic.
Clinic owners were given one year to meet the Sept. 1 deadline. Many, however, said they would close their clinics instead of paying to upgrade their facilities to meet safety standards for the 60,000 to 72,000 women who have abortions in Texas each year.
The Fifth Circuit Court judges also argued that Yeakel acted inappropriately in invalidating the hospital admitting privileges requirement by going well beyond the scope of the two cases that were presented before him.
Yeakel was asked in a lawsuit filed by Whole Woman's Health abortion group to exempt two abortion clinics from the hospital admitting privileges requirement for their clinic in McAllen and the Reproductive Services clinic in El Paso, because the abortionists who work at those clinics are not able to obtain privileges.
"Though plaintiffs sought only as-applied relief from the admitting privileges requirement, limited to two abortion clinics — one in El Paso and one in McAllen — the district court, in its final judgment, appears to have facially invalidated the admitting privileges requirement throughout Texas," explained Circuit Judge Jennifer Walker Elrod.
She continued: "The district court's judgment extended beyond plaintiffs' claims and the relief requested. Not only did the district court enjoin the admitting privileges requirement as applied to the McAllen and El Paso clinics, as plaintiffs sought, the district court determined that the admitting privileges requirement 'create[d] an impermissible obstacle as applied to all women seeking a previability abortion.'"
"This was inappropriate because plaintiffs did not request that relief. … Furthermore, the district court's facial invalidation of the admitting privileges requirement is directly contrary to this circuit's precedent. Abbott II specifically upheld the facial constitutionality of the admitting privileges requirement," she added.
Nancy Northup, president and CEO of the Center for Reproductive Rights, a pro-abortion group that is opposed laws that regulate abortion clinics, lamented to Fox News that the ruling requiring abortion facilities to meet basic health and safety standards will "make safe, legal abortion essentially disappear overnight."
Cheryl Sullenger, the senior policy adviser for Operation Rescue, a pro-life organization, told The Christian Post earlier this year that she anticipated some abortion facilities might close simply because clinic owners don't want to pay to upgrade their facilities.
"What they're really saying is: we don't believe that women are worth the extra money it would cost to increase our safety protocols at the clinic. And they're not worth us doing what it takes to get hospital privileges," she said.
Attorney General Greg Abbott, who's the Republican candidate running for election to become Texas' next governor in November, is defending the law in court and his office praised the decision of the judges.
"This decision is a vindication of the careful deliberation by the Texas Legislature to craft a law to protect the health and safety of Texas women," Lauren Bean, a spokeswoman from his office said.
Democrat Wendy Davis, who launched her campaign for governor in Texas after gaining national attention for an 11-hour filibuster against HB 2 last summer, is running against Abbott.
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