Nearly two-thirds of abortion clinics in Texas must close immediately after a federal appeals court ruled Thursday that the state could enforce its law requiring those facilities to be built to the same stringent standards as hospitals.
The requirement is part of a sweeping piece of legislation called House Bill 2, which includes several measures that undermine women's access to abortion. The mandate was struck down in late August by a federal judge in Austin, who ruled that it was unconstitutional because it put an undue burden on women seeking healthcare. He put the requirement on hold while the state appealed.
But on Thursday, a three-judge panel of the U.S. 5th Circuit Court of Appeals tossed out U.S. District Court Judge Lee Yeakel's injunction, which allowed Texas' estimated 20 abortion clinics to continue operating during the appeals process. Without that injunction, only seven or eight clinics will remain in business.
The New Orleans-based 5th Circuit said the central question it considered was “whether the state has shown a likelihood of success” in fighting Yeakel’s ruling “regarding whether the ambulatory surgical center provision is unconstitutional. We conclude that it has.” The panel repeatedly criticized Yeakel’s decision as “unclear” and “confusing.”
The Center for Reproductive Rights sued Texas in April on behalf of a coalition of abortion clinics to stop the so-called ambulatory surgical center requirement. Its president said Thursday evening that the decision would force nearly 1 million Texas women of reproductive age to drive a minimum of 300 miles round trip "to access their constitutional right to an abortion."
"Today's ruling has gutted Texas women's constitutional rights and access to critical reproductive healthcare and stands to make safe, legal abortion essentially disappear overnight," Nancy Northup, the center's president, said in a statement.
"All Texas women have been relegated today to a second class of citizens whose constitutional rights are lesser than those in states less hostile to reproductive autonomy," Northup added. "And women facing difficult economic circumstances will be particularly hard hit by this devastating blow."
John Seago, legislative director for Texas Right to Life, applauded the appeals court. At the same time, groups that oppose abortion have been frustrated "when laws are struck down for no apparent reason," Seago said. "Any further clarity the court would like to provide would be welcome."
A representative of the Guttmacher Institute, which advocates for reproductive rights, saw no clarity in the 5th Circuit's ruling. Elizabeth Nash, senior state issues associate for Guttmacher, called it "a total mess."
"This is not how courts operate," Nash said in an interview. Usually, she said, if a law is being appealed before it goes into effect, courts will hold its enforcement in abeyance until the appeal is decided. But that's not what happened.
"If these clinics close immediately and are closed for any amount of time, it's going to be very difficult to rebuild this system," Nash said. "If this law is ultimately knocked down a year from now, reopening these clinics is going to be incredibly hard. People will have found new jobs.
"This upends the entire system," she added. "That's why laws are enjoined until the very end. Because upsetting the status quo is so devastating."
HB2, which the Texas Legislature passed in 2013, restricted abortion in four ways:
It banned nearly all abortions after 20 weeks of pregnancy.
It required that abortion-inducing drugs such as mifepristone be administered in the presence of a doctor, resulting in three separate clinic visits.
It mandated that physicians performing the procedure have admitting privileges at a hospital within 30 miles of the clinic where they practice.
And it demanded that all abortion clinics have the same equipment and building requirements as ambulatory surgery centers, even if all they do is administer oral abortion drugs.
In August, Yeakel struck down the ambulatory surgical center requirements statewide and the admitting privileges mandate as it applies to two Texas clinics, one in El Paso and one in McAllen, areas of the vast state where women have the least access to abortion services.
The 5th Circuit ruled Thursday that both of those requirements could be enforced immediately.
A spokeswoman for Texas Atty. Gen. Greg Abbott praised the result. Lauren Bean said in a statement, "This decision is a vindication of the careful deliberation by the Texas Legislature to craft a law to protect the health and safety of Texas women."