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Fifth Circuit Paves Way for Supreme Court Showdown on Chemical Abortion Regulations



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The Fifth Circuit’s decision this week in Planned Parenthood v. Abbott set up a likely Supreme Court showdown on the constitutionality of laws regulating chemical abortions. As such life-ending drugs have become the abortion business’s growth industry, this case has major implications.

In the unanimous decision, Judge Edith Jones – on behalf of a panel of three women judges – upheld a Texas provision regulating the administration of abortion-inducing drugs, as well as a provision requiring abortion providers to maintain admitting privileges at local hospitals. Specifically, the chemical-abortion regulation, based in part on Americans United for Life model legislation, requires that abortion providers administer abortion-inducing drugs only in the manner approved by the Food and Drug Administration (FDA) and as clearly outlined in the drug labels.

Abortion providers’ admitted misuse of abortion-inducing drugs necessitated enactment of the Texas regulation in order to protect the lives and health of women. Providers routinely administer the drugs beyond the gestational restrictions specified by the FDA and instruct women to administer the drugs at home, away from medical supervision. 

Eight women have died of severe bacterial infection after they administered the RU-486 chemical abortion regimen in a manner not approved by the FDA. But the abortion industry is driven by profit—not by concern for women’s health—and its “drive-thru” business model of handing out drugs and sending women on their way allows them to “serve” more women in a day and achieve a higher profit margin.

The Fifth Circuit pointed out that Planned Parenthood offered no real evidence to support its challenge to the Texas provision. On the other hand, the State provided ample medical evidence to support the regulation. Citing the State’s expert Dr. Donna Harrison, the court noted that the FDA approved the RU-486 regimen with restrictions, including a patient agreement that requires the woman (and the physician) to confirm that she is no more than 49 days pregnant. 

Further, the court rejected Planned Parenthood’s claim that chemical abortion is necessary for some women who cannot undergo surgical abortion—noting that the abortion giant provided no real evidence for that claim. To the contrary, Dr. Harrison testified that 6 percent of chemical abortions fail and eventually require surgery, meaning that it would be medically irresponsible for a physician to administer a chemical abortion to a woman for whom a later surgical abortion might be contraindicated.

It’s important to note that the decision marks one of the most straightforward applications of the Supreme Court’s 2007 Gonzales v. Carhart decision. Citing Gonzales, the Fifth Circuit concluded that the Texas chemical-abortion regulation does not require an exception for the life and health of the woman because the group of women who allegedly “need” chemical abortions (those for whom Planned Parenthood claimed surgical abortion is contraindicated) was vague and undefined, because Planned Parenthood failed to provide any evidence that such a group of women even exists, and because, as highlighted by Dr. Harrison’s testimony, there is disagreement regarding whether chemical abortions are “safer” for these women when subsequent surgical abortion—alleged to be dangerous for such women—may be necessary. 

The court did not fall for Planned Parenthood’s attempted “bait and switch”: If surgical abortion is dangerous for a woman, then obviously it would be dangerous for her to undergo a chemical abortion when the method of treatment for failed chemical abortions is . . . surgical abortion.

The court also highlighted that, unlike the partial-birth abortion ban at issue in Gonzales, women can still choose chemical abortion when it is administered in the first 49 days of pregnancy. This holding rejects abortion proponents’ disingenuous claims that commonsense chemical abortion regulations somehow ban chemical abortion altogether.

The Fifth Circuit decision broadens the “split” between federal courts and state courts on the constitutionality of chemical-abortion regulations. It joins the Sixth Circuit in determining that regulations requiring the FDA-approved protocol for administration of the RU-486 regimen are not an “undue burden,” but contradicts state court decisions in Oklahoma and North Dakota invalidating similar laws. 

Just last year, the Supreme Court appeared poised to review Oklahoma’s chemical-abortion regulation in Cline v. Oklahoma Coalition for Reproductive Justice, but it eventually denied review after the Oklahoma Supreme Court interpreted the state law in a way that foreclosed subsequent federal court review. 

Here, however, the Supreme Court has already expressed an interest in reviewing the Texas regulations. Earlier in the litigation, Planned Parenthood petitioned the Court to vacate a Fifth Circuit panel’s decision to allow the admitting-privileges requirement to go into effect while the litigation continued. 

The high court’s decision denying Planned Parenthood’s request spurred Justices on both sides of the abortion issue to issue concurring or dissenting opinions, each pointing out alleged flaws in the reasoning of the other. Tellingly, the dissent noted the following:

The underlying legal question—whether the new Texas statute is constitutional—is a difficult question.  It is a question, I believe, that at least four Members of this Court will wish to consider irrespective of the Fifth Circuit’s ultimate decision.

With Supreme Court review granted upon the vote of only four Justices, this sentiment practically ensures that at least some portion of the Texas provisions will be reviewed should Planned Parenthood seek review by the high court. If the Fifth Circuit’s decision ultimately stands, it would open avenues for comprehensive regulation of chemical abortion across the nation—meaning that the Fifth Circuit decision may be the most important federal court decision on abortion since Gonzales.

During oral arguments Tuesday in the Hobby Lobby and Conestoga cases, the women on the Supreme Court received much attention from the media—but women are not universally in lock-step with the ideologically driven liberal female Justices on the Supreme Court. The Fifth Circuit’s opinion demonstrates that women can see through the rhetoric of the abortion industry—or the “hypothesis and speculation,” as the Fifth Circuit termed it—and understand that commonsense abortion regulations aimed at protecting women’s health must be pursued and upheld.

— Mailee R. Smith is a lawyer with Americans United for Life.



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