It took the Fifth Circuit Court of Appeals almost no time to come to the conclusion that U.S. District Court Judge Lee Yeakel got it wrong in his recent decision over HB 2—a decision in which he blocked the law’s hospital admitting privileges portion and a small portion of its restrictions on medication abortions.
While the court will hear arguments in January as to the merits of Texas‘ claims that the challenged HB 2 provisions are in fact constitutional, the court made it clear in its ruling that there is almost no restriction on abortion access it plans to turn away.
The Fifth Circuit’s reputation as one of the most anti-equality, anti-abortion rights jurisdictions is well-deserved, but granting the State of Texas’ request for emergency relief was nothing short of extraordinary. To begin with, the state was required to first seek a stay of the injunction with the lower court, or at least present some evidence that doing so would have been impracticable. Never mind, said the Fifth Circuit, it will consider the state’s request anyway.
From there, it only becomes clearer that the Fifth Circuit has no intention of getting in the way of the Perry administration’s crusade against reproductive health care, and that come January, when the Fifth Circuit hears arguments on the merits of Texas’ appeal, those arguments will land before a very friendly audience.
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First, the court takes issue with the district court’s conclusion, after three full days of trial, that there was no rational basis to support the admitting privileges requirement because the evidence just did not support state claims that the requirement was necessary to advance patient care and safety. The district court focused much of its reasoning on emergency room treatment of women experiencing complications following an abortion, because that was the state’s proffered reason for implementing the regulation. But the Fifth Circuit finds error in this reasoning because “this overlooks substantial interests of the State in regulating the medical profession and the State’s interest in ‘protecting the integrity and ethics of the medical profession.'”
Except it doesn’t. Judge Yeakel acknowledged that interest, but refused to find it absolute, thus holding the state to its minimal burden of being able to articulate simply a rationale that links the regulation with its purported goal. But that’s not how the Fifth Circuit sees it. According the court:
The State offered more than a “conceivable state of facts that could provide a rational basis” for requiring abortion physicians to have hospital admission privileges. The State offered evidence that such a requirement fosters a woman’s ability to seek consultation and treatment of complications directly from her physician, not from an emergency room provider. There was evidence that such a requirement would assist in preventing patient abandonment by the physician who performed the abortion then left the patient to her own devices to obtain care if complications developed.
The paternalist concerns of the “patient left up to her own devices” is of course a safety rationale—one Judge Yeakel rejected for a lack of evidence. And it says a lot about how the judges on the Fifth Circuit view women and abortion providers. Neither are to be trusted with their own judgment, and both must be saved from the consequences of their actions by a combination of state police power and federal court enforcement.
Once the Fifth Circuit had replaced its judgment for the district court’s on whether there was a rational basis for the state to require hospital admitting privileges, it moved on to consider whether the requirement—which will result in 24 counties in Texas losing access to safe abortion care—is an undue burden on the right to choose abortion. Naturally, the Fifth Circuit said no, it is not. “Measured by the text” of the statutory language itself, there is no undue burden, the court found, because the statute doesn’t say its purpose is to “place a substantial obstacle in the path of a woman seeking an abortion.” The court then disposed of any sympathy for those who will not be able to access abortion care by curtly noting that “at least 100 miles” is not too far to travel for care.
At the lower court, Judge Yeakel noted that anti-choice harassment drove providers away and made hospitals unwilling to grant admitting privileges. But for the Fifth Circuit, it’s not the fault of the law if doctors can’t comply or are forced out of business by anti-choice harassers—and the courts are under no obligation to help.
Other physicians that abortion providers have attempted to recruit to replace retiring physicians and physicians who have left the abortion practice are not attracted to the Rio Grande Valley area for various reasons unrelated to the hospital-admitting privileges requirement.
In other words, it’s open season on trying to run abortion providers out of town, and the Fifth Circuit will do what it can to help.
From there, the court turns its attention to the law’s regulation of medical abortions. Make no mistake about it, the impact of the Fifth Circuit’s ruling on the admitting privileges rule will be immediate and severe, and will exacerbate a health-care crisis in a state that cannot afford to have that crisis deepen.
But it’s in the court’s analysis of the limited injunction on the law’s medication abortion ban that the depth of the justices’ misogyny becomes apparent.
The state challenged the district court’s decision to create a “health exception” to HB 2’s regulation of medication abortion on several grounds, including arguing that physicians and patients do not have constitutional right to use off-label protocols that the Food and Drug Administration has not approved as safe and effective “even if an individual patient could demonstrate a strong medical need for those drugs.” In addition, it argued that there is no need for a “vague and amorphous ‘health’ exception” since HB 2 provides a limited medical emergency exception.
Amazingly, the Fifth Circuit didn’t just stay the injunction on these grounds, though the justices made it clear that refusing to do so in no way suggested it wouldn’t lift the injunction entirely in January. Instead, the court narrowed it because it found that the “health exception” imposed by the district court was “broader than necessary to remedy the undue burden” found by the restriction. Pending appeal, then, the Fifth Circuit stayed the injunction pertaining to medical abortions with one exception: The district court’s injunction “continues to apply pending appeal with respect to a mother who is 50 to 63 days from her last menstrual period if the physician who is to perform an abortion procedure on the mother has exercised appropriate medical judgement and determined that, due to a physical abnormality or preexisting condition of the mother, a surgical abortion is not a safe and medically sound option for her.”
Thursday’s decision doesn’t undo all of Judge Yeakel’s decision—just most of it. The sliver that remains does so likely because the judges couldn’t come up with a constitutional rationale for endorsing a pre-viability ban that contains no exception for when the patient’s life is in danger. But if the tenor and tone of the rest of the decision is any indication, I’m sure they tried to find one.