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UPDATED: Abortion Providers Appeal to U.S. Supreme Court

Asking court to vacate appeals decision in HB 2 lawsuit

By Jordan Smith, 12:19PM, Mon. Nov. 4, 2013

UPDATED: Abortion Providers Appeal to U.S. Supreme Court
Illustration by Jason Stout

UPDATE:U.S. Supreme Court Judge Antonin Scalia has ordered the state of Texas to respond by Nov. 12 to an appeal filed by abortion providers seeking to block implementation of the controversial requirement from House Bill 2 that abortion doctors have nearby admitting privileges.

The admitting-privilege provision went into effect Friday after a three-judge panel of the 5th U.S. Court of Appeals vacated the decision of federal district Judge Lee Yeakel who ruled after a three-day trial that the provision is unconstitutional. Scalia will now be faced with determining whether to reverse the Fifth Circuit and allow the lower court ruling to stand until after the appeals court considers a full appeal of the case in January. (As the judge assigned to the Fifth Circuit, Scalia could make this decision himself or could ask the full court to weigh in. If he denies the providers' appeal, they may turn to another member of the court for reconsideration.)

In the meantime, imposition of the provision in Texas, where many abortion-performing doctors are currently without admitting privileges, is "wreaking havoc on the lives of women and their families," and on abortion providers across the state, said Louise Melling, deputy legal director for the ACLU, which with Planned Parenthood, Whole Woman's Health and other abortion providers sued Texas in September to block the provision from taking effect last month.

During a morning press call, providers and lawyers reiterated that clinics across the state have had to cease providing abortions while they wait to find out if their doctors will be granted admitting privileges at any number of hospitals. Amy Hagstrom Miller, founder and CEO of Whole Woman's Health, which has five clinics across the state – three of which are now incapable of providing abortion care because of the law – said that by her count, 14 clinics in Texas have now stopped providing care, and are having to turn away patients who had already scheduled appointments to receive the procedure before the Fifth Circuit intervened Halloween night.

Marni Evans is one of those women. Evans, 37, had already received the mandatory state counseling, mandatory ultrasound examination, and had waited the requisite 24 hours before obtaining the procedure when she found out, via voice message Thursday night, that the procedure she had scheduled for Nov. 1 at the Planned Parenthood clinic in South Austin would not happen. She hadn't been following news about the legal fight over the controversial new provision and was shocked to hear that the state had taken away her right to make what she said was a difficult decision, but one that she and her fiancé concluded was the right one for them. "That decision was taken out of our hands," she said Monday morning. "I was devastated...I had no idea what to do next."

Indeed, Evans, who is now eight-weeks pregnant, said that in order to obtain services in Texas she would not only have to find a provider that can see her – providers who are still able to see patients are quickly being overwhelmed by the number of women who need access – but also, because of the requirements of state law, would have to start over again at the beginning, with another round of required counseling and another state-mandated ultrasound examination followed by another 24-hour waiting period. Evans has instead decided to cash in frequent flyer miles that she was saving for her honeymoon and has made arrangements to travel to Seattle, where she previously lived, in order to obtain services at a Planned Parenthood clinic there. Evans said she is fortunate to have the resources to take such drastic action, and is worried about what women who don't have that access will do.

"Last week's court decision allowing this extreme measure to take effect has already begun to hit the state of Texas like a tsunami, taking away vital health services from women," Melling said in a press statement emailed this morning. "The women of Texas are counting on the Supreme Court to ensure they have access to the care they need."

EARLER: Lawyers for a coalition of providers who have sued to block provisions of controversial abortion regulations in House Bill 2 this morning appealed to the U.S. Supreme Court, asking that it step in to vacate an Oct. 31 lower court ruling that allowed the provisions to take immediate effect, blocking hundreds of women from access to safe abortion care.

Providers – including Planned Parenthood and Whole Woman's Health – sued Texas in federal court, arguing at trial last month that a requirement that abortion doctors have hospital admitting privileges, and another that mandates doctor's use an outdated protocol for administering pharmaceutical abortion, violate due process and equal protection provisions of the Constitution, and create an undue burden on women.

District Judge Lee Yeakel agreed in part, blocking the hospital privileges provision. Texas quickly appealed to the 5th U.S. Circuit Court of Appeals, and on Halloween evening the court agreed that the injunction issued by Yeakel should be lifted, and the law allowed to take effect, until the full appeal could be considered in January.

In an appeal filed this morning, Janet Crepps, attorney at the Center for Reproductive Rights, argues on the providers' behalf that the Fifth Circuit got it wrong. The decision to allow the provision to take effect has already resulted in one-third of the states abortion clinics to cease providing care, leaving, in just the first days, hundreds of women without access to safe and legal care. In its ruling, however, a three-judge panel of the Fifth Circuit rejected the notion that the provision would irreparably harm women or providers and ruled only that the state would be harmed by not being able to enforce its laws. "The Fifth Circuit's decision, based on briefing completed within twenty-four hours of the District Court's injunction, is the outlier among these cases," across the country that have challenged such provisions, Crepps wrote. "Indeed, the Fifth Circuit is the only court to allow a local admitting privileges requirement to take effect despite evidence that it would force numerous women's health centers to stop providing abortion care."

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