Big Win for Women in Texas

by Thomas M. Messner

A federal appeals court Thursday handed women in Texas a big win by upholding health and safety regulations that had been challenged by Planned Parenthood.

Last year Texas passed a law that requires abortion doctors to have admitting privileges at a hospital no more than 30 miles from where the abortion is provided. The appeals court quoted a board-certified Ob/Gyn who explained that requiring admitting and staff privileges “provides a more thorough evaluation mechanism of physician competency” and “acknowledges and enables the importance of continuity of care.”

The appeals court explained that the “specter of Dr. Kermit Gosnell” informed the testimony of two doctors who both “explained that the credentialing process entailed in the [admitting-privileges] regulation reduces the risk that abortion patients will be subjected to woefully inadequate treatment.”

The appeals court also explained that “requiring abortion providers to have admitting privileges would also promote the continuity of care” by “reducing the risk of injury caused by miscommunication and misdiagnosis when a patient is transferred from one health care provider to another.”

Opponents argue, among other things, that admitting-privileges regulations will effectively force some abortion doctors to stop providing abortions and thereby unconstitutionally burden access to abortion.

The U.S. Court of Appeals for the Fifth Circuit rejected this argument in the particular legal and factual context of this case. In an opinion authored by Judge Edith Jones, the appeals court ruled that Texas could impose the regulation so long as it provided adequate time for abortion doctors to gain admitting privileges at a hospital.

The appeals court explained that the trial court had “invalidated the admitting-privileges provision as it pertains to the entire state of Texas, but its only recitation of evidence concerned ‘24 counties in the Rio Grande Valley,’ which it predicted would be left with no abortion provider.”

The appeals court went on to note that the Rio Grande Valley has only “four counties, not twenty-four” (if true, whoops) and, moreover, “travel between those four counties and Corpus Christi, where abortion services are still provided, takes less than three hours on Texas highways.” The court explained these distances were “up to 150 miles maximum and most far less.”

The appeals court then concluded that “an increase of travel of less than 150 miles for some women is not an undue burden” under the Supreme Court’s 1992 precedent in Casey v. Planned Parenthood.

The appeals court also explained that, “although some clinics may be required to shut their doors, there is no showing whatsoever that any woman will lack reasonable access to a clinic within Texas.” Moreover, “evidence offered by Planned Parenthood showed that more than ninety percent of the women seeking an abortion in Texas would be able to obtain the procedure within 100 miles of their respective residences” even if the admitting privileges requirement went into effect.

The ruling is a smack down to Planned Parenthood and to the trial court that ruled against the regulation last fall. The appeals court also reversed a ruling of the trial court regarding a Texas regulation requiring that medication abortions satisfy the FDA-approved protocol for such abortions. Mailee Smith from Americans United for Life discusses this aspect of the Fifth Circuit ruling here.

The ruling is also an example of judicial modesty and restraint. While carefully observing Supreme Court precedent, as the rule of law generally obliges lower federal courts to do, the Fifth Circuit panel also gave due deference to the legislative process. At one point the appeals court addressed the “rational basis test” and explained that, under the test, it is “not the courts’ duty to second guess legislative factfinding, ‘improve’ on, or ‘cleanse’ the legislative process by allowing relitigation of the facts that led to the passage of the law.”

The appeals court explained that this rule of restraint “is particularly important in the realm of constitutional adjudication.” Legislatures can change a law if it turns out to be misguided. It is more difficult to resurrect a law once courts have judged it to be unconstitutional.

This would be a good principle for the Supreme Court to keep in mind if it chooses to hear an appeal of the Fifth Circuit’s decision.

— Thomas M. Messner is a Legal-Policy Fellow at the Charlotte Lozier Institute in Washington, D.C.

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