Fifth Circuit Stays Injunction Against Texas Abortion Law

Once again, proponents and opponents of reproductive choice have raced to the courthouse. And as in the cases involving religious objections to contraception, the Fifth Circuit has stepped in to stay an injunction ordered by a district court. Texas is the latest state to enact a law that requires a physician who performs an abortion to have admitting privileges at a hospital within 30 miles from the place where the abortion is performed.  On Monday, October 28, 2013, Judge Lee Yeakel ruled that the Texas law was not rationally related to any state interest in protecting women’s health and enjoined enforcement of the admitting privileges requirement. The state officials appealed. Three days later, the Fifth Circuit entered a stay, allowing the state to enforce its law immediately.

The Texas Statute

The legislature made the following findings in support of HB 2:

  • Substantial medical evidence supports the conclusion that by 20 weeks after fertilization, the fetus can feel pain.
  • The state has a compelling interest in protecting the lives of the unborn from the point at which they can feel pain, separate from and in addition to its interest in protecting life from the point of viability.
  • Banning abortion at or after 20 weeks from fertilization imposes no undue burden on women because they have had adequate time to come to a decision. There is an exception for severe fetal abnormality and for women who suffer from a physical condition that creates a serious risk of death or “substantial and irreversible physical impairment of a major bodily function other than a psychological condition.”

In addition to requiring the physician to have admitting privileges, the law requires:

  • a determination of the “post-fertilization age” of the fetus, as measured from the fusion of sperm and ovum rather than the last menstrual period (LMP)
  • provision of contact information for the physician or other health care personnel who will have access to the woman’s medical records 24 hours per day, seven days per week.
  • use of the FDA protocol for the administration of medication to induce abortion, which includes two trips to the abortion provider to receive the two doses of medication— notwithstanding that the common practice among physicians is to use a lower dose and allow the woman to take the second dose at home.
  • that the physician use the method most likely to allow the fetus to survive if its post-fertilization age is, or is likely to be, 20 weeks or more.
  • that a physician who is prescribing drugs for a medical abortion must first physically examine the woman and determine both the gestational age and the placement of the fetus in the uterus.
  • that after a medical abortion, the woman must return for a follow-up visit within 14 days to be sure that the pregnancy is completely terminated and assess the amount of bleeding.
  • as of September 1, 2014, the facility where the abortion is performed must meet the requirements for ambulatory surgical facilities.

Basis for the Injunction

Planned Parenthood presented evidence that clinics were likely to close if the law were enforced. Most of its physicians did not have admitting privileges at a nearby hospital. And they were unlikely to get those privileges for several reasons. The application process and credentialing take at least 90 days. Each hospital has its own bylaws and requirements, which often include, in addition to board certification: (1) a minimum number of admissions annually; (2) a minimum number of surgeries annually; and (3) residence in the local area. An owner of an abortion clinic testified that many of the physicians who perform abortions at her clinic are retired and live too far away from the clinics in remote areas. Clinic physician would not be able to meet the threshold number of admissions or surgeries because the rate of complications from abortions is so low.

In addition, physicians with admitting privileges often work under contracts that prohibit their working part-time or under contract at a clinic. The owner’s attempts to find local physicians with admitting privileges had been futile.

State officials argued that the requirement would facilitate continuity of care if a woman experienced complications; the patient would not be abandoned, but could contact the physician. They presented evidence that 80 percent of negative outcomes in emergency rooms resulted from poor communication between the physician and the hospital. The court noted that there was no evidence that admitting privileges affected the communication problem.

Yeakel’s  analysis began with the Supreme Court decision in Planned Parenthood v Casey, which held that the state may not place an undue burden on the right of a pregnant woman to obtain an abortion before the fetus is viable, i.e., could survive outside the womb. Any state interest must be balanced against that right. If the purpose or effect was to place obstacles in the path of the woman seeking an abortion before viability, the law is unconstitutional. He found that there was no rational relationship between the admission privileges requirement and the state’s interest in protecting health or the integrity of the medical profession. He noted that the state had not allowed a grace period to allow physicians to apply for admitting privileges and found that the state never intended to allow a physicians a chance to comply with the law.In addition, the law delegated to private entities the decision whether any physician could perform abortions. The provision was unconstitutional.

Medication-Induced Abortions

The  provisions governing abortions induced by medication also posed an obstacle to women seeking abortions before viability because the requirement to follow the protocol approved by the Food and Drug Administration (FDA) in 2000 required two visits 24 to 48  hours apart and was limited to 49 days post-LMP. The standard approved by the American College of Obstetricians and Gynecologists (ACOG)  establishes a lower dose at each administration and a different route for the second dose; it allows the woman to take the second dose at home, and is permitted up to 63 days post-LMP. The statute allows the physician to prescribe the ACOG-approved dose but requires adherence to the rest of the FDA protocol,on pain of professional discipline; the court noted that all parties agreed that this combination of the two protocols was not the standard of care and could pose risks to the woman’s health.  However, under the Supreme Court’s rulings, the woman has no constitutional right to the method of abortion she prefers. Both the FDA and the ACOG-approved protocols are safe and effective. The statute infringes on the right of privacy only to the extent that the surgical method of abortion poses a significant health risk and the abortion would take place between day 50 and day 63 post-LMP.  Enforcement of the restriction was enjoined only as to women in those circumstances.

The Stay Pending Appeal

The Court of Appeals took a completely different view of the evidence and the law.  The standard for granting a stay pending appeal requires that: (1) the applicant be likely to prevail on the merits and will suffer irreparable harm if the stay is not granted; (2) the issuance of a stay would not substantially injure other parties; and (3) the public interest favors the stay. First, the court decided that the state was likely to succeed on the merits. It reviewed the evidence found that there was a rational relationship to the state’s legitimate interest in protecting health and the integrity of the medical profession. The state had presented “more than a conceivable set of facts” in support of the requirement for admitting privileges. The district court’s contrary finding was not supported  by the evidence. And, anyway, “a legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” To strike down the admitting privileges requirement would be a step toward rejecting the Supreme Court’s decision that a state may constitutionally require abortions to be performed by a physician, the court added.

Any reduction of access to abortion services was simply not a problem. Although Planned Parenthood presented evidence that 22,000 women would have no access to abortion, the trial court did not make that specific finding. The appeals court found that there was no large fraction of women whose access would be impaired because 90 percent of women lived within 100 miles of an abortion provider.

As to the ruling on medication abortions, the court found that the state had not necessarily established that it was likely to succeed on the merits, but the trial court’s exception for women whose physicians’ reasonable medical judgment required the medication abortion to preserve life or health between 50 and 63 days after LMP was too broad because it allowed the physician to consider the woman’s mental or emotional health. The injunction must be limited to women whose physical condition made the medical abortion necessary.