Res judicata dooms challenge to surgical center provision of Texas abortion law, 5th Circuit says
A federal appeals court has ruled that plaintiffs challenging a surgical center requirement for Texas abortion clinics should have brought the claim in a prior suit challenging other parts of the law.
The per curiam panel decision (PDF) on Tuesday by the New Orleans-based 5th U.S. Circuit Court of Appeals said res judicata bars the challenge to the provision requiring abortion clinics in Texas to meet the standards for surgical centers. Even if its ruling on res judicata is incorrect, the 5th Circuit said, the facial challenge to the surgical center requirement fails on the merits.
The court said res judicata bars the facial challenge, but not as applied challenges. Both the surgical center requirement and a requirement that doctors have admission privileges at nearby hospitals were unconstitutional as applied to a McAllen abortion clinic that closed in November 2013, the appeals court found.
The court said some women would have to travel 235 miles or more for abortions as a result of the closure, creating a substantial obstacle for them.
The plaintiffs filed suit two weeks after the 5th Circuit upheld the admission privileges requirement in a facial challenge to the provision in a case known as Abbott II.
Res judicata bars the new claim because it arises out of the same series of transactions and could have been raised in the prior litigation, the 5th Circuit said. “The law does not allow several bites at the same apple, even if from a different quadrant of the apple,” the 5th Circuit said.