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Have I mentioned lately that the Fifth Circuit sucks?

The only mystery is that it took them this long.

Texas abortion providers’ Monday victory was short-lived. The U.S. 5th Circuit Court of Appeals on Thursday reversed a federal district court ruling that found part of the state’s new abortion regulations unconstitutional, meaning the provisions of House Bill 2 could take effect immediately if state officials choose to enforce them.

“This unanimous 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,” Attorney General Greg Abbott said in a statement.

A three-judge panel in the 5th Circuit appellate court lifted a permanent injunction placed on the abortion regulations by a lower court, arguing in a written opinion that the state was likely to succeed in its legal arguments.

The judges, Priscilla R. Owen, Jennifer Walker Elrod and Catharina Haynes, wrote that “there is a substantial likelihood that the state will prevail in its argument that Planned Parenthood failed to establish an undue burden on women seeking abortions or that the hospital-admitting-privileges requirement creates a substantial obstacle in the path of a woman seeking an abortion.” Furthermore, they wrote,”we also conclude that the state has made a strong showing of likelihood of success on the merits, at least in part, as to its appeal of the injunction pertaining to medication abortions.”

The appellate court’s decision overrules U.S. District Judge Lee Yeakel’s ruling on Monday that a provision in HB 2 that requires abortion doctors to have admitting privileges at a nearby hospital imposed an undue burden on women seeking the procedure. Additionally, Yeakel ruled that it would be unconstitutional for the state to require physicians to follow federal standards for drug-induced abortions if a physician determined it would be safer for the woman to use a common evidence-based protocol.

Abortion providers, many of whom said they would be forced out of business if those provisions took effect, were expected to immediately appeal the 5th Circuit’s Thursday decision. It was still unclear late Thursday whether the state will enforce the provisions while legal wrangling continues.

Again, I just don’t know what the holdup was. I figure they had this opinion written and ready to go before the ink was dry on Judge Yeakel’s decision. I’m not sure if the next appeal is to the full court or if it goes to SCOTUS directly, but either way I don’t expect much. Have I also mentioned that we need to win more elections? Don’t get mad, get even at the ballot box.

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4 Comments

  1. Andrea says:

    I’m a bit rusty, but believe that any appeal of the decision from the 3-judge panel on the 5th Circuit would first be heard by the circuit sitting en banc (i.e. by the entire 5th circuit), then go to the Supreme Court.

  2. David says:

    I nearly spit coffee all over my dashboard when I heard NPR quote Abbott as referring to the “careful deliberation by the Texas Legislature to craft a law to protect the health and safety of Texas women”!

  3. Mainstream says:

    Andrea, the en banc procedure at the appeals court is optional, and I think either party in this situation could seek the full panel review. I am unsure whether this decision qualifies for an appeal to the Supreme Court or for review by writ of certiorari, but either way most observers expect this to go the distance.

    Owen and Elrod and Haynes on this Fifth Circuit panel are all women, all GOP appointees by George W. Bush.

  4. […] here, here, and here for the background. I’m disappointed, but I can’t say I’m surprised. We have got […]