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Media Alerts - Planned Parenthood of Greater Texas Surgical Health Services v. Abbott - Fifth Circuit
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November 1, 2013
  Planned Parenthood of Greater Texas Surgical Health Services v. Abbott - Fifth Circuit
Headline: Fifth Circuit Allows Most of the Recently Enacted Texas Abortion Regulations to Come into Effect, at Least Temporarily.

Area of Law: Constitutional Law, Abortion.

Issue Presented: Whether the State's emergency motion to stay the district court's injunction against two new restrictions on abortion should be granted pending the outcome of the appeal on the merits.

Brief Summary: After Texas enacted a new law regulating abortion, Planned Parenthood and others filed suit to block the law from taking effect. In expedited proceedings, the U.S. District Court for the Western District of Texas enjoined portions of the law the day before it was scheduled to come into effect. The State of Texas appealed to the U.S. Court of Appeals for the Fifth Circuit and sought an emergency stay of the district court's injunction. The Fifth Circuit largely granted the State's request, allowing most of the new abortion law to come into effect, at least until a final resolution of the appeal.

Extended Summary: This case involves Texas House Bill No. 2, which imposed limitations on the performance of abortions and which was passed into law in July 2013. The law requires a physician performing or inducing an abortion to have admitting privileges at a hospital no more than thirty miles from the location where the abortion is performed or induced. The law also largely limits the use of abortion-inducing drugs to uses that are authorized by an FDA protocol. Notably, the FDA protocol permits medication-induced abortions only up to 49 days after the last menstrual period, while common "off-label" protocols are employed up to 63 days after the last menstrual period and require fewer office visits.

Planned Parenthood and others filed suit challenging the constitutionality of the restrictions. On October 28, one day before the provisions were scheduled to take effect, the U.S. District Court for the Western District of Texas found the law unconstitutional in part and granted injunctive relief. The State appealed the decision to the U.S. Court of Appeals for the Fifth Circuit and filed an emergency motion to stay the district court's injunction.

The Fifth Circuit granted the State's emergency motion and stayed most of the district court's injunction pending final resolution of the appeal. The court began its analysis by considering whether the State had shown that it was likely to prevail on the merits of the appeal. Regarding the admitting-privileges provision, the Fifth Circuit found that the State provided a rational basis for the requirement, namely the State's interests in ensuring health and safety and in regulating the medical profession. The court also found that the requirement did not impose an unconstitutional, undue burden on the abortion right. It relied on the Supreme Court case Gonzales v. Carhart (2007), which found that if a statute does not facially indicate that its purpose is to place a substantial obstacle in the path of a woman seeking an abortion, an incidental burden usually cannot be enough to invalidate it. Additionally, the Fifth Circuit found that the State would suffer irreparable harm by denying the public interest in the enforcement of its laws.

Regarding the restrictions on medication abortions, the Fifth Circuit found that the State was likely to prevail on the merits because the restrictions did not, with limited exceptions, impose an undue burden. The court did, however, recognize a limited category of cases in which the restrictions could be unconstitutional. That category involves women between 50 and 63 days after the last menstrual period for whom a surgical abortion would, in the treating physician's judgment, be unsafe. Apart from that category, the court stayed the district court's injunction.

In granting the State's motion for a stay pending appeal, the Fifth Circuit panel noted that its determinations do not bind the merits panel.

For the full opinion, please see: http://www.ca5.uscourts.gov/op...ub/13/13-51008-CV0.pdf.

Panel: Circuit Judges Owen, Elrod, and Haynes

Date of Issued Opinion: 10/31/2013

Docket Number: No. 13-51008

Decided: Motion for Stay Granted in Part

Case Alert Author: Barira Munshi

Counsel: Helene T. Krasnoff, Planned Parenthood Federation of America for Plaintiffs - Appellees Planned Parenthood of Greater Texas Surgical Health Services, Planned Parenthood Center for Choice, and Planned Parenthood Sexual Healthcare Services; Janet Crepps, Center for Reproductive Rights for Plaintiffs - Appellees Whole Woman's Health, Austin Women's Health Center, Killeen Women's Health Center, Southwestern Women's Surgery Center, West Side Clinic, Inc., Routh Street Women's Clinic, Houston Women's Clinic, Alan Baird, Lamar Robinson, and Pamela J. Richter; Helene T. Krasnoff, Planned Parenthood Federation of America for Plaintiff - Appellee Planned Parenthood Women's Health Center; Jonathan F. Mitchell, Office of the Solicitor General for Defendants - Appellants Attorney General Gregory Abbott, David Lakey, and Mari Robinson.

Author of Opinion: Judge Owen

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 11/01/2013 11:26 AM     5th Circuit  

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