Last week the pro-life movement earned a small victory and a foreshadowing of a greater victory. District Court Judge Yeakel had struck down two aspects of Texas’ recently enacted law regulating abortions, H.B. 2, but a Fifth Circuit panel granted a stay pending appeal on the merits. The panel granted the stay (in part) because it held that there was a substantially likelihood that the challenged parts of the law were constitutional.
Notably, the panel accepted that Texas had a rational basis for requiring abortionists to have admitting privileges at a nearby hospital: it serves as an extra form of credentialing, so as better to protect the mother’s health during an abortion. This rational basis highlights the importance of this requirement, which hopefully will weed out negligent abortionists like Kermit Gosnell, who not only abort the baby but also threaten the mother. Also regarding the admitting-privileges requirement, the panel held that Texas had shown a substantial likelihood of success on the merits of its argument that, although this requirement will reduce the number of abortionists, the resulting burden on women seeking abortions does not render the law facially unconstitutional (Planned Parenthood does not bring an as-applied challenge).
The Fifth Circuit’s opinion also correctly acknowledged an often publicly misunderstood aspect of abortion law in general: the extremely wide breadth of a “health of the mother” exception to an abortion restriction, which includes inherently subjective “emotional” health. In addressing H.B. 2’s requirement that abortionists must follow the FDA’s approved use of abortion-inducing drugs (which effectively shortens the window in which abortionists can do medical abortions), the panel criticized the overbreadth of the “health of the mother” exception that the district court judge grafted onto the law as necessary to avoid an undue burden on the “right” to an abortion.
The Fifth Circuit’s opinion sounds hopeful notes regarding the constitutionality (even under the Supreme Court’s current “undue burden” jurisprudence) of these two aspects of Texas’ abortion law. The upcoming steps in the litigation are Planned Parenthood’s appeal of this stay to Justice Scalia (the presiding justice for the Fifth Circuit), and then the actual appeal of Judge Yeakel’s decision before the Fifth Circuit. It seemed from the language of this panel’s opinion that these three judges (Owen, Haynes, and Elrod) may not be the panel that addresses the merits of the appeal.
The Fifth Circuit’s opinion can be read here