Planned Parenthood challenge to abortion limit legislation in Texas reversed

NEW ORLEANS – A federal appeals court has reversed a district court’s ruling that overturned a state law requiring an abortion doctor to have admitting privileges at a nearby hospital.

The case was argued on March 28 in New Orleans at the U.S. Court of Appeals for the Fifth District.

Planned Parenthood originally sued the state of Texas and its attorney general over legislation passed in July 2013. The group called the measure unconstitutional because it required all physicians performing abortions to have admitting privileges at a hospital within 30 miles and because it required abortion-inducing medication to be in compliance with FDA protocol.

Planned Parenthood claimed both provisions violated patients' and physicians’ due process rights, unlawfully delegated authority to hospitals and were unconstitutionally vague.

On Oct. 28, 2013, the district court issued an opinion permanently enjoining the admitting privileges provision and partially enjoining the medication abortion regulation. Days after, the state appealed the district court's ruling.

The state’s appeal argued the district court erred by granting abortion providers the authority to speak for physician and patient rights, invalidating the admitting privileges regulation and creating a broad exception to the medication regulation.

The admitting-privileges regulation addresses the circumstance in the event a woman suffers complications after an abortion and requires treatment at a hospital. This regulation requires that the abortion performer be a staff member of a hospital within 30 miles in order to effectively transfer the woman for nearby treatment if necessary.

Planned Parenthood argued that between only .3-2.5 percent of women experiencing abortion have complications, and that local emergency room physicians are qualified to handle post-abortion complications. Dr. Paul Fine, a board certified obstetrician and gynecologist and Planned Parenthood center director and Joseph Potter, a sociology professor, predicted the requirement will close one third of Texas’s abortion facilities and prevent at least 22,286 women annually from having access to an abortion.

Planned Parenthood asserted that demanding FDA compliance for medicine-induced abortions limits the accessibility window for many women. The FDA endorses medications administered within 49 days after a woman’s last missed period, although Planned Parenthood uses medications it states as safe and effective for use through 63 days. Dr. Fine asserts this regulation will put many women at greater risk whose anatomies are not compatible with surgical intervention and whose safer choice is therefore medication.

The state claims that having the admitting-privileges provision will foster better care for abortion patients, reducing the delay in post-abortion complications treatment and health risk for patients with critical complications. The state claims that the FDA regulation does not cause an undue burden for women.

The Fifth District’s ruling reverses the District Court’s judgment, rendering any abortion performed by a physician without the admitting-privileges illegal, except for those abortion providers who have applied for admitting privileges under the statute and are awaiting a response from the hospital.

Case No. 13-51008 Planned Parenthood of Greater Texas Surgical Health Services, et al v. Attorney General Gregory Abbott; David Lakey M.D.; and Mari Robinson, Executive Director of the Texas Medical Review Board.