Holland Phillips Nov. 19, 2013, 6:01pm

NEW ORLEANS – The U.S. Fifth Circuit Court of Appeals has overturned a lower court’s judgment that went against two Texas state laws governing abortion providers.

On Oct. 31, the court ruled on an appeal brought by the State of Texas in connection with the passage of two state law provisions in July 2013 that require doctors who provide abortions to have admitting privileges at a local hospital, which abortion providers claim make it more difficult for them to operate.

The plaintiff, Planned Parenthood of Greater Texas Surgical Health Services, was granted a partial permanent injunction by a district court in its case against the state law amendments that would have placed restrictions on abortion providers. Planned Parenthood asserts that both of the provisions violate due process rights under the Fourteenth Amendment and place an undue burden on women seeking abortions.

The state argued that the provisions are designed to further patient safety by mitigating the occurrence of health complications and providing regulation of the medical profession by requiring proper credentialing.

The appeals court granted the defendant’s motion requesting a stay of the district court’s injunction that ruled part of the legislation unconstitutional.

The Texas legislature's provision deemed unconstitutional by the district court requires physicians performing abortions to have admitting privileges at a hospital no more than 30 miles away from the procedure’s location. The appeals court ruled in favor of the plaintiff’s argument that this requirement lacked a rational basis and placed an undue burden by creating an obstacle for access.

The circuit court, however, found state and federal laws sufficient to protect patients’ rights because “hospitals are prohibited from discriminating against physicians who perform abortions in determining if privileges will be extended.” The appeals ruling acknowledged that costs of the procedure may increase and qualified providers may decrease, but found “an increase in travel distance of less than 150 miles for some women is not an undue burden on abortion rights.”

The provision of the Texas legislation upheld as constitutional by the appeals court requires that medication abortions be standardized under FDA protocol in order to mitigate any complications that might arise from the practice of “off-label protocol.” However, the court placed an exception on the amendment that the State argues went too far.

In reference to medication abortion, the court was swayed by the State’s warning that off-label protocol’s divergence from FDA protocol could result in more complications for the patient. Differences between the two practices include extending permissions for medication abortions from 49 days to 63 days, removing the requirement for certain examination and documentation procedures, and removing the requirement for a follow-up visit with the same physician who performed the abortion.

The appeals court stayed the district court’s injunction for being “overly broad” with the exception that it mothers whose health would otherwise be compromised by a surgical abortion will be able to receive a medication abortion 50 to 63 days from her last period.

Briefing and oral arguments will be heard by a merits panel in January 2014.

The case was heard by Circuit Judge Priscilla R. Owen, Jennifer Walker Elrod and Catharina Haynes.

Case no. 12-51008.

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