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Federal Appeals Court: Texas Cannot Yet Enforce Abortion Law

Andrea Grimes

A federal appeals court ruled Tuesday that Texas' highly restrictive omnibus anti-abortion law—which would have closed all but eight legal abortion facilities in the state—must remain blocked, for now.

A federal appeals court ruled Tuesday that Texas’ highly restrictive omnibus anti-abortion law—which would have closed all but eight legal abortion facilities in the state—must remain blocked, for now.

A federal district court in Austin had declared parts of HB 2 unconstitutional and unenforceable last week, just days before its last provision, which requires abortion facilities to operate as hospital-like ambulatory surgical centers, was set to go into effect on September 1.

Late Sunday evening, Texas Attorney General Greg Abbott’s office, which is defending the law, asked the Fifth Circuit Court of Appeals in New Orleans to block the district court’s ruling and allow the state to enforce the law. The Fifth Circuit instead chastised Abbott’s office for its late and lengthy filing, and scheduled a hearing for September 12.

It ordered, in part:

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The appellants waited until 11:59 p.m. on Sunday August 31 to file the stay motion; a corrected version was sent at 12:08 a.m. on Monday September 1. This did not allow time for a response, or for the court adequately to consider the motion, before the scheduled effective date, though the appellants claim irreparable harm from the statute’s not being enforced. Moreover, the tardy motion was well in excess of the number of pages that are allowed.

It was something of a surprise victory—if, perhaps, temporary—for Texas abortion providers who have faced tough opposition in the largely conservative Fifth Circuit. That court has previously ruled parts of HB 2 to be constitutional, resulting in the shuttering of more than half of the state’s legal abortion providers.

Many rural, conservative, or religious-affiliated hospitals have denied abortion-providing doctors admitting privileges that are newly required under HB 2.

Judge Lee Yeakel of the Western District of Texas sided with Texas abortion providers, who argued that the law imposed medically unnecessary restrictions that were intended not to increase the safety of abortion patients, but to close the doors of legal abortion providers.

In its emergency appeal to the Fifth Circuit, the State of Texas argued that the Austin district court “failed even to mention (much less follow)” higher court precedents, and ignored a legal test that deems a law an “undue burden” only if it affects a “large fraction” of residents. The state, Abbott’s office argued, “is suffering immediate injury” as a result of the district court ruling.

At least one clinic has already reopened in the days since the federal court’s ruling: the McAllen location of Whole Woman’s Health, a plaintiff in the federal suit now before the Fifth Circuit. That clinic had closed in March after abortion-providing doctors in the Rio Grande Valley were denied applications for admitting privileges from local hospitals.

The CEO of Whole Woman’s Health told reporters on Friday that her staff at a remaining clinic in Fort Worth “let out a giant cheer” when they heard about the Austin court’s ruling.

“The evidence has been stacking up against the state,” said Amy Hagstrom Miller on a Friday evening press call, “and against the politicians who so cynically passed these laws in the name of safety.”

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