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Media Alerts - Planned Parenthood of Greater Texas Surgical Health Services v. Abbott - Fifth Circuit
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March 28, 2014
  Planned Parenthood of Greater Texas Surgical Health Services v. Abbott - Fifth Circuit
Headline: Fifth Circuit Upholds Texas Abortion Regulations.

Area of Law: Abortion.

Issue Presented: Whether requiring physicians performing or inducing an abortion to have admitting privileges at a hospital no more than thirty miles from the location where the abortion is provided imposes an undue burden on a woman's right to choose an abortion. And, whether mandating that the administration of abortion - inducing drugs comply with the protocol authorized by the Food and Drug Administration amounts to a ban on pre-viability abortion in some circumstances.

Brief Summary: Planned Parenthood of Greater Texas Surgical Health Services and other abortion facilities and three physicians (collectively Planned Parenthood) sued the Attorney General of Texas and other individuals (collectively the State), seeking to enjoin two provisions of 2013 Texas House Bill No. 2 (H.B. 2) pertaining to the regulation of surgical abortions and abortion - inducing drugs. The U.S. District Court for the Western District of Texas held that parts of both provisions were unconstitutional and granted injunctive relief. A motions panel of the U.S. Court of Appeals for the Fifth Circuit granted a stay pending appeal, and the United States Supreme Court upheld the stay. On appeal, the Fifth Circuit concluded that both of the challenged provisions are constitutional and therefore reversed and rendered judgment, with one exception, for the State.

Extended Summary: Planned Parenthood of Greater Texas Surgical Health Services and other abortion facilities and three physicians (collectively Planned Parenthood) sued the Attorney General of Texas and other individuals (collectively the State), seeking to enjoin two provisions of 2013 Texas House Bill No. 2 (H.B. 2). The first provision requires that a physician performing or inducing an abortion have admitting privileges on the date of the abortion at a hospital no more than thirty miles from the location where the abortion is provided; and the second provision mandates that the administration of abortion - inducing drugs comply with the protocol authorized by the Food and Drug Administration (FDA). The U.S. District Court for the Western District of Texas permanently enjoined the admitting - privileges provision and partially enjoined the medication abortion regulation. The State noted its appeal and moved for an emergency stay. The U.S. Court of Appeals for the Fifth Circuit granted a stay pending appeal, which the United States Supreme Court upheld.

Admitting Privileges Requirement: Planned Parenthood argued that the admitting - privileges requirement lacked a rational basis and imposed an undue burden on a woman's right to choose an abortion.

To show that the admitting - privileges requirement lacked a rational basis, Planned Parenthood produced evidence that there is an extremely low risk of a complication from or after an abortion, that ER doctors are qualified to treat most of these complications, and that the provision has the effect of restricting the availability of abortion within the state because the requirement will close one-third of the state's abortion facilities. The State argued that there are four main benefits supporting the requirement: (a) it provides a more thorough evaluation mechanism of physician competency which better protects patient safety; (b) it acknowledges and enables the importance of continuity of care; (c) it enhances inter - physician communication and optimizes patient information transfer and complication management; and (d) it supports the ethical duty of care for the operating physician to prevent patient abandonment.

The Fifth Circuit concluded that the State acted within its prerogative to regulate the medical profession by heeding these patient - centered concerns and requiring abortion practitioners to obtain admitting privileges at a nearby hospital, and that the State is not required under rational basis review to choose the least restrictive means to achieve a legitimate goal.

Additionally, the Fifth Circuit held that even though the State articulated rational bases for this law, and even though its purpose was not impugned, Planned Parenthood could succeed if the effect of the law substantially burdened women's access to abortions in Texas. However, the Fifth Circuit held that an increase of travel of less than 150 miles for some women is not an undue burden. Second, the assertion that "there will be abortion clinics that will close" is too vague. Although some clinics may be required to shut their doors, there is no showing that any woman will lack reasonable access to a clinic within Texas. And, third, the record does not show that abortion practitioners will likely be unable to comply with the privileges requirement.

Planned Parenthood further contended that H.B. 2 does not offer abortion providers a long enough "grace period" to comply with the admitting-privileges provision. H.B. 2 gives abortion providers approximately 100 days to apply for admitting privileges, which, on its face, is a sufficient grace period. However, under Texas law, hospitals can take up to 170 days from the date of application to respond. It is unreasonable to expect that all abortion providers will be able to comply with the admitting-privileges provision within 100 days when receiving a response from a hospital processing an application for admitting privileges can take 170 days. Accordingly, the Fifth Circuit concluded that pursuant to H.B. 2's severability provision, § 10(b), the admitting - privileges requirement may not be enforced against abortion providers who applied for admitting privileges within the grace period allowed under H.B. 2, but are awaiting a response from a hospital.

Medication Abortions Provision: H.B. 2 mandates that medication abortions satisfy the protocol approved for such abortions by the FDA and outlined in the final printed label (FPL) for the abortifacient drug mifepristone. Since the FDA authorized the protocol for medication abortions, doctors have developed an off - label protocol that differs from the FDA - approved version. In particular, although the FPL limits the administration of a medication abortion to forty - nine days following a woman's last menstrual period (LMP), doctors regularly administer medication abortions up to sixty - three days LMP, and sometimes as late as seventy days LMP.

Planned Parenthood argued that for women who suffer from certain medical conditions that make surgical abortion significantly more risky, H.B. 2 acts as a ban to pre-viability abortion after forty - nine days LMP. The Fifth Circuit held that H.B. 2's regulations on medication abortion do not facially require a court - imposed exception for the life and health of the woman. First, the conditions that supposedly require an off-label protocol have not been clearly defined. Second, Planned Parenthood has not pointed to any evidence of scientific studies or research in the record showing this to be true. Third, H.B. 2 does not ban an entire abortion method. Rather, it merely shortens the window during which a woman may elect to have a medication abortion.

The Fifth Circuit also noted that Planned Parenthood's facial attack on the Act should not have been entertained because the proper means to consider exceptions is by as - applied challenge.

The Fifth Circuit reversed the district court's ruling and rendered judgment for the State of Texas, except that the admitting privileges requirement, § 10(b), may not be enforced against abortion providers who timely applied for admitting privileges under the statute but are awaiting a response from the hospital.

For the full opinion, please see:
https://www.ca5.uscourts.gov/o...ub/13/13-51008-CV1.pdf.

Panel: Circuit Judges Jones, Elrod, and Haynes

Argument Date: 1/6/2014

Date of Issued Opinion: 3/27/2014

Docket Number: No. 13-51008

Decided: Reversed and rendered

Case Alert Author: Kirsty Davis

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, Planned Parenthood Sexual Healthcare Services, each on behalf of itself, its patients and physicians; and Planned Parenthood Women's Health Center. 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., each on behalf of itself, its patients and physicians; Alan Braid, M.D., Lamar Robinson, M.D., and Pamela J. Richter, D.O., each on behalf of themselves and their patients. Rebecca L. Robertson, ACLU Texas, for Plaintiffs-Appellees Routh Street Women's Clinic and Houston Women's Clinic, each on behalf of itself, its patients and physicians. Jonathan F. Mitchell, Office of the Solicitor General for the State of Texas for Defendants-Appellants Attorney General Gregory Abbott, David Lakey, M.D., and Mari Robinson, Executive Director of the Texas Medical Board.

Author of Opinion: Circuit Judge Jones

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 03/28/2014 02:39 PM     5th Circuit  

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