Constitutional Law

5th Circuit allows Texas abortion law to take effect; one-third of abortion clinics may close

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Opponents of a Texas abortion law say one-third of the state’s 36 abortion providers may be forced to shut down as a result of a provision allowed to take effect by a federal appeals court on Thursday.

The New Orleans-based 5th U.S. Circuit Court of Appeals allowed a provision that says abortion doctors must have formal admitting privileges at a hospital within 30 miles of their abortion clinics, report the Austin American Statesman, the New York Times and SCOTUSblog.

A federal judge had said the requirement is likely to be unconstitutional because abortion patients who require emergency care will be taken to the hospital even if the doctor does not have privileges there. But the appeals court found no undue burden on the right to abortion, though acknowledging the requirement might increase the cost of abortion and decrease the number of abortion doctors. The 5th Circuit opinion (PDF) said there is a rational basis for the provision because hospitals conduct credentialing reviews of doctors with admission privileges, helping ensure quality.

A second disputed provision of the law generally limits the use of abortion-inducing medication to a protocol authorized by the U.S. Food and Drug Administration. Doctors usually depart from the protocol by prescribing the drug at a lower dose, by allowing patients prescribed a second combination drug to take it at home, and by allowing a longer time period for medication abortions.

The federal judge had allowed that requirement to take effect, except in cases affecting the life and health of the mother. The appeals court said the judge’s health exception was broader than necessary, and should only apply to medication abortions during the time period that is longer than called for in the FDA protocol.

As a result of the ruling, doctors may not rely on the type of medication abortion in the first seven weeks of pregnancy that is most widely used by doctors, SCOTUSblog says. The decision conflicts with an Oklahoma Supreme Court ruling on Tuesday that said the FDA protocol requirement is unconstitutional.

The Oklahoma Supreme Court ruled in response to a request for clarification by the U.S. Supreme Court. The Oklahoma high court had previously struck down the medication abortion restrictions in a three-paragraph opinion. The Oklahoma case is currently pending before the U.S. Supreme Court, though it’s unclear whether the court will keep the case.

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