A federal appeals court didn't act on an emergency motion Tuesday that would have allowed some new abortion restrictions to take effect in Texas, the latest step in a lengthy battle activists on both sides predicted would end up before the U.S. Supreme Court.
State officials urged the panel to quickly hear their appeal of a judge's ruling Monday striking down a requirement that doctors performing abortions must have admitting privileges at a hospital within 30 miles of their clinic.
But the conservative 5th Circuit Court of Appeals in New Orleans did not take action by the close of business Tuesday, leaving in place — at least for now — the judge's permanent injunction blocking the new abortion rules from being enforced.
The judge agreed with abortion-rights activists that the restrictions, which were to take effect Tuesday, placed an unconstitutional burden on women seeking an abortion and didn't make the process safer, as state officials had argued. Texas Attorney General Greg Abbott immediately appealed.
The provision, part of a large package of abortion limits the Legislature approved in July, would effectively force the closure of about a third of the state's 32 abortion clinics — some the only facility within hundreds of miles where women can get an abortion. Abortion rights supporters argued most hospitals will not grant abortion doctors admitting privileges for religious, business or competitive reasons.
Before filing his appeal, Abbott — a Republican candidate for Texas governor — said he expected the case to reach the U.S. Supreme Court. Federal judges have issued temporary injunctions against similar laws requiring admitting privileges in Alabama, Kansas, Mississippi and Alabama, but this is the first case to get a final written decision from a district court.
Will the Supreme Court want to tackle this case?
For that reason, University of Richmond law professor Carl Tobias said the 5th Circuit might expedite the case, but he questioned whether the Supreme Court has the appetite to consider an abortion case, and if so, would take this particular one.
The 1973 Roe v. Wade decision, which determined women have a right to abortion, has largely stood as legal precedent the past four decades, with the Supreme Court only occasionally wading in to clarify constitutional questions stemming from it. The last significant abortion ruling came in 2007, when the high court upheld a ban on partial-birth abortion that Congress approved and President George W. Bush signed into law four years earlier, Tobias said.
"This is important, but it doesn't strike me as central to ... overturning Roe v. Wade," Tobias said of the Texas admitting privileges law.
Should the 5th Circuit disagree with the judge and allow the law to stand, it would be the latest in a long list of measures approved by Texas lawmakers and overturned by Austin judges, only to be allowed on appeal.
In court papers, Abbott and his legal team argued that District Judge Lee Yeakel overstepped his authority and misapplied the law.
"The district court took that extraordinary step without citing — much less purporting to satisfy — the constitutional standard" for making its decision, the Texas court filing said.
Janet Crepps, an attorney for the Center for Reproductive Rights representing the abortion clinics, said Abbott's brief relied primarily on legal arguments while her response centered on the practical effects of the law.
"If the injunction is lifted, literally thousands of women in Texas will no longer be able to access abortions," she said. "That's a huge harm, and there is no interest on behalf of the state that justifies denying the constitutional rights of all of those women."
Abbott asked the 5th Circuit to expedite the appeals process, but the soonest the court could consider the case is January.
As part of the ruling Monday, Yeakel, a Bush appointee, also found the Texas Legislature could dictate how doctors administer abortion-inducing drugs. However, he blocked a new drug requirement because he said it failed to allow doctors to adjust treatment in order to best protect the health of women taking it.
Planned Parenthood and the other abortion providers who filed suit did not challenge a ban on abortion 20 weeks into a pregnancy, a provision that took effect Tuesday, and a requirement starting next October that all abortions must be performed in a surgical center.