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Texas Abortion Law Unblocked by 5th Circuit

By Brett Snider, Esq. on November 01, 2013 | Last updated on March 21, 2019

An injunction against Texas' abortion law was removed by the Fifth Circuit on Thursday, allowing the law which threatens to shutter many of the state's abortion clinics to go into effect.

According to The New York Times, the three-judge panel unanimously decided that the Texas abortion law, enforcement of which was on emergency appeal from Monday's district court decision, found that the "admitting privileges" provision was likely to be found constitutional, reversing the lower court's decision.

Court Removes Injunction, Abortion Law in Effect

The Fifth Circuit answered the state of Texas' appeal to Judge Lee Yeakel's ruling that both the "admitting privileges" provision and the scope of the medical abortion provision were unconstitutional, granting Thursday a motion to stay the lower court's judgment.

There is a balancing test to granting stays pending appeals -- as anyone following California's Prop 8 case might remember -- and the Fifth Circuit considered:

  • Likelihood of petitioner's success on the merits
  • Irreparable injury to petitioner absent stay
  • Injury to other parties by granting stay
  • Public interest

The test is taken from Nken v. Holder, but it's pretty similar to the test for granting injunctive relief -- which is what the court below did.

So the difference between Judge Yeakel and the Fifth Circuit is belief in the success of Texas' claims on the merits, and the Fifth believes that the state of Texas has made a "strong showing" for success.

Admitting Privileges Rational, Not Undue Burden

The lower court struck the "admitting privileges" provision from the Texas abortion law because the court found it to lack any rational basis.

The Fifth Circuit disagreed, stating that Texas has an interest in protecting the "integrity and ethics of the medical profession" In addition, the Fifth Circuit found it persuasive that the law could "assist in preventing patient abandonment" by abortion providers.

Rational basis is a pretty low bar, and the Fifth Circuit smartly notes that SCOTUS has upheld state restrictions that require only physicians perform abortions, and there may be a state interest in promoting only credentialed physicians through requiring admitting privileges.

On the question of undue burden, the Fifth Circuit disagreed with Judge Yeakel that the provision presented a "substantial obstacle." Noting that Planned Parenthood only made a facial challenge to the abortion law, the Court was unconvinced that in the "large fraction of cases" the law would produce an undue burden to a woman's right to an abortion.

Bottom Line

The case will be examined further on appeal, but the Fifth Circuit's decision is a good reminder of the historically low bar for abortion regulations to pass constitutional scrutiny. Very few abortion laws have been found to be undue burdens.

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