Court Lets Texas Abortion Regulation Take Effect: Three Things You Need to Know

Charles A. “Chuck” Donovan  

Yesterday the U.S. Court of Appeals for the Fifth Circuit issued an order that allows a recently enacted Texas abortion regulation to take effect. The case is called Planned Parenthood v. Abbott and it was filed by several Planned Parenthood entities and similar organizations.

Here are three things you need to know about the case.


1. Texas’s “20-week rule” was not challenged in this case.


Earlier this year a special session of the Texas legislature created several new abortion regulations. Most notably, the regulations limit elective abortions to the first 20 weeks of pregnancy with certain exceptions for conditions threatening the life of the mother, certain strictly defined physical conditions and fetal abnormality.


Planned Parenthood and the other plaintiffs did not challenge the 20-week regulation. So yesterday’s Fifth Circuit ruling does not involve a challenge to the constitutionality of Texas’s 20-week rule.


However, several other states have enacted or are considering 20-week rules or similar gestational limits. Similar legislation has been passed by the U.S. House of Representatives and will soon be introduced in the U.S. Senate.


Legal challenges to the 20-week rule present one of the major constitutional issues in the pro-life movement right now.


Earlier this week, the State of Arizona asked the U.S. Supreme Court to review a ruling by the U.S. Court of Appeals for the Ninth Circuit that struck down Arizona’s version of the 20-week rule.


2. Litigation will continue, but Texas’s “admitting privileges” regulation takes effect for now.


In addition to the 20-week rule, the recent Texas legislation included several other regulations.


One of those regulations is called the “admitting privileges” requirement. This rule requires a physician performing or inducing an abortion to have “admitting privileges, on the date of the procedure, at a hospital no more than thirty miles from the location at which the abortion is performed or induced.”


Planned Parenthood challenged the admitting privileges rule. On October 28, one day before the rule was due to take effect, a federal district court ruled that the admitting privileges regulation was unconstitutional.


The State of Texas, led by Attorney General Greg Abbott, quickly asked the U.S. Court of Appeals for the Fifth Circuit to temporarily block, or “stay,” the district court order until the case was decided on appeal.


The Fifth Circuit agreed with Attorney General Abbott’s request. Under the stay ruling, the admitting privileges rule can take effect while Texas appeals the adverse district court decision.


3. Texas’s admitting privileges requirement is likely to win on appeal.


The court did not issue a final decision on whether or not the “admitting privileges” rule is constitutional.  At this stage, the court ruled only that the admitting privileges rule could go into effect while Texas appeals the lower court order striking down that rule.


However, as part of issuing the stay, the court ruled that the State of Texas is “likely to succeed” in defending the admitting privileges requirement. Among other reasons for reaching this conclusion, the Fifth Circuit cited Supreme Court precedent stating that “the State has ‘legitimate concern for maintaining high standards of professional conduct’ in the practice of medicine.”


In addition to challenging the admitting privileges regulation, Planned Parenthood also challenged a recently enacted Texas regulation that “limits the use of abortion-inducing drugs to a protocol authorized by the United States Food and Drug Administration (FDA), with limited exceptions.”


The district court issued a mixed ruling on this “medication abortion” regulation. In its stay order, the Fifth Circuit temporarily narrowed part of the district court order regarding the medication abortion regulation and will consider the issue more fully as the appeal unfolds.


At this stage in the case, however, the Fifth Circuit’s ruling in favor of the admitting privileges regulation is a clear win for Texas and loss for Planned Parenthood.


 Chuck Donovan is President of the Charlotte Lozier Institute.


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