The Fifth Circuit Court of Appeals in New Orleans announced Thursday that it would deny Texas abortion providers’ request for the entire court to re-hear a year-old challenge to the state’s omnibus anti-abortion law.
HB 2 was signed into law in September 2013 after weeks of protest at the state capitol that included a 13-hour filibuster by Texas state Sen. Wendy Davis.
A three-judge, all Republican-appointee panel had heard the case earlier this year and ruled that the State of Texas could continue to enforce parts of HB 2 that severely restrict the prescription of medication abortion and require abortion-providing physicians to have admitting privileges at hospitals within 30 miles of where they perform procedures.
The American Civil Liberties Union, Planned Parenthood, and the Center for Reproductive Rights, along with independent Texas abortion providers, then asked the Fifth Circuit to re-hear their case, this time not before a three-judge panel but before the entire court, or “en banc.”
Roe has collapsed and Texas is in chaos.
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Thursday’s denial was accompanied by a strongly worded dissent authored by Judge James Dennis, a Clinton appointee who described the three-judge panel’s earlier ruling on the case as a “perversion of the undue burden standard.”
Dennis wrote that the previous panel ruling contained “serious constitutional errors,” adding that his colleagues’ “abject deference” to the defendant State of Texas “annihilates any ‘real substance’ to the vital individual constitutional interest at stake.”
Of the 15 sitting justices, just three—all Democratic appointees—voted to re-hear the case en banc. Two additional Democratic appointees—Judges Higginson and Stewart, put in place by Presidents Obama and Clinton, respectively—voted against re-hearing, along with ten Republican-appointed justices.
After the Fifth Circuit’s initial panel ruling concerning the admitting privileges provision, about one-third of Texas’ legal abortion providers, including all providers in the Rio Grande Valley, closed their doors when doctors were unable to obtain privileges at local hospitals.
At least one Dallas hospital was targeted for public protest by anti-choice groups who said they would begin picketing if privileges were awarded to abortion-providing physicians.
Judge Dennis, in his dissent, said that by refusing to re-hear the case, “a majority of this court effectively ensures that laws, like the Texas law challenge here, that substantially chop away at a woman’s right to a previability abortion, will be given only a modicum of scrutiny.”
That, wrote Dennis, amounts to “essentially giving states carte blanche with respect to the regulation of the right to an abortion.”
The Center for Reproductive Rights, which represents Texas abortion providers in this and a subsequent challenge to HB 2 that is also currently before the Fifth Circuit court, issued a statement Thursday calling the Fifth Circuit’s en banc denial a “threat to the well-being of millions of women.”
Texas abortion providers and their representatives at the ACLU, Planned Parenthood, and the Center for Reproductive Rights must now look to the Supreme Court for relief.