A panel of judges on the Fifth Circuit Court of Appeals has ruled two previously challenged restrictions of Texas’ omnibus anti-abortion law to be constitutional in an opinion released Thursday.
Planned Parenthood, along with a group of independent abortion providers and civil rights groups, had challenged two parts of the four-part HB 2: one requiring abortion providers to have admitting privileges at local hospitals and another mandating that medication abortion be prescribed according to 14-year-old Food and Drug Administration protocols.
One of the abortion providers who brought the suit told RH Reality Check that she was “not surprised” by the ruling. The Fifth Circuit panel, which ruled on HB 2, included Judge Edith Jones, who has previously upheld Texas’ mandatory sonogram law, expressly stated that she’d like to see Roe v. Wade overturned, and in 2004 called abortion “risky.” The court has also previously upheld Texas’ exclusion of Planned Parenthood from providing care to tens of thousands of Texans in its now-defunct Medicaid Women’s Health Program.
“The state is using women’s bodies and women’s lives in a political football game,” said Amy Hagstrom Miller, CEO of Whole Woman’s Health, a group of abortion providers with locations in Texas, Minnesota, and Maryland. She told RH Reality Check that “Texas women deserve the right to the same safe and professional health care that women receive all across America.”
The conservative and Republican lawmakers who championed HB 2 said it would increase the health and safety of Texans who seek abortions by mandating that doctors be cleared by a hospital before they are allowed to perform abortions. Critics of the law said that would put too much power in the hands of potentially hostile hospital boards whose main interest lies in drumming up business through doctors who admit patients—something abortion providers rarely do because of the overall safety and simplicity of legal abortion.
But the Fifth Circuit found that HB 2 “on its face does not impose an undue burden on the life and health of a woman,” even though it requires Texans to travel hundreds of miles round trip, and make multi-day trips, to legal abortion facilities. The part of the law which requires Texas abortion providers to meet the standards of ambulatory surgical centers was not challenged in this suit; come September it is expected to close all but six—or potentially seven, if a new Planned Parenthood clinic in San Antonio is able to open at that time—legal abortion providers in the state.
“The legislators lied when they said this law wouldn’t close clinics,” said Hagstrom Miller.
She continued, “This law has closed clinics. This law has denied women access to safe care. This law is now and will in the future do great damage to the health-care infrastructure in the State of Texas.”
The only two legal abortion clinics in Texas’ Rio Grande Valley recently closed their doors due to HB 2’s restrictions, and another clinic closure in East Texas has left the region with no legal abortion providers between Houston and Baton Rouge, Louisiana.
In a statement released after the ruling, Republican Texas Gov. Rick Perry called the law “good news.”
“Today’s court decision is good news for Texas women and the unborn,” he said, “and we will continue to fight for the protection of life and women’s health in Texas.”
The three-judge panel did rule, however, that HB 2 could not be enforced against doctors “who timely applied for admitting privileges under the statute but are awaiting a response from the hospital.” The court did not go further to specify what constitutes a “timely” application for privileges.
The next step in the case will be for Planned Parenthood to appeal to the entire Fifth Circuit court, rather than just the panel that ruled Thursday. After that, the case is expected to make its way to the Supreme Court.