June 09, 2015

June 9, 2015

Leah Brown
512.477.1244 (o)

NEW ORLEANS, LA — Today, in a nearly complete pro-life victory, a three-judge panel at the Fifth Circuit Court of Appeals unanimously ruled to uphold the constitutionality of Texas’ pro-life law, House Bill 2, as applied virtually across the state.

In Whole Woman’s Health v. Cole, four abortion providers and three abortion doctors challenged the 2013 bill passed overwhelmingly by the Texas Legislature and signed into law by then-Gov. Rick Perry. Then-Attorney General Greg Abbott, now Gov. Abbott, defended the law in the federal courts.

“We are pleased that the Fifth Circuit Court of Appeals agrees that the State of Texas has a right to increase safety standards at abortion facilities to protect the health and safety of women,” said Joe Pojman, Ph.D., executive director of Texas Alliance for Life. “We commend Gov. Greg Abbott for diligently and effectively defending this reasonable law against attacks from the abortion industry when he was the attorney general,” he added.

Of the three challenged provisions, the Court upheld one across the state and two everywhere except in McAllen. The court completely upheld the requirement that drug-induced abortions be performed according to the FDA regulations in the presence of a physician. Second, the court upheld the requirement that abortion facilities meet the same safety standards as ambulatory surgical centers (ASCs), of which there are more than 450 across the state. Third, the court upheld the rule requiring abortion doctors to have admitting privileges at local hospitals. The court did carve out an exception to the second and third requirements for the Whole Woman’s Health abortion facility in McAllen and for Dr. Sherwood Lynn when he performs abortions there.

The court wrote:

In plain terms, H.B. 2 and its provisions may be applied throughout Texas, except that Supreme Court precedent requires us to partially uphold the district court’s injunction of the ASC requirement as applied to the Whole Woman’s Health abortion facility in McAllen, Texas, and to uphold the district court’s injunction of the admitting privileges requirement as applied to Dr. Lynn when he is working at the McAllen facility.

The exception for McAllen is related to the distance women in the Rio Grande Valley (Cameron, Hidalgo, Starr, and Willacy County) would have to travel for abortion if the McAllen facility closed. The nearest abortion facility lies in San Antonio, approximately 235 miles away. While Supreme Court precedent permits at least 150 miles, the 235-mile distance was considered to have the “effect of placing a substantial obstacle in the path of a woman seeking an abortion.”

The Court did not grant an exception to abortion facilities in El Paso, noting that abortion is readily available in Santa Teresa, New Mexico, only a few miles across the state border.

Currently 19 abortion facilities are operating in Texas. Of those, seven meet the safety standards of House Bill 2 (located in Austin, Dallas (2), Fort Worth, Houston (2), and San Antonio). Two more ASCs are expected to open in the coming weeks in San Antonio.

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