By Carla Hall
8:56 PM EDT, November 1, 2013
It’s unfortunate that an appellate court judge in Texas on Thursday lifted an injunction against two onerous restrictions in that state's new abortion law. Just days before, a lower court federal judge had ruled those restrictions unconstitutional because they hindered a woman’s legal right to an abortion.
This restrictive and unfair law has had an embattled path to daylight, and it’s not over yet. No wonder that U.S. District Judge Lee Yeakel, the first federal judge to rule on it, observed in his opinion that abortion “is the most divisive issue to face this country since slavery.”
This is the law that Texas state Sen. Wendy Davis famously blocked from being passed in late June when she filibustered for 13 hours, standing in pink gym shoes, on the floor of the state Legislature as a special session came to a close. However, Gov. Rick Perry called another special session of the Legislature and the bill passed.
Then its opponents, including Planned Parenthood, took their case to federal court, where Yeakel ruled on Oct. 28 that the law’s insistence that doctors performing abortions have admitting privileges at a nearby hospital “places a substantial obstacle in the path of a woman seeking an abortion … and is thus an undue burden to her.” He also ruled that it was unfairly burdensome to disallow medication abortions (by pills) when the physician deems it the safest abortion procedure for the woman. Yeakel barred both provisions of the law from being enforced on the eve of it taking effect.
But then a three-judge panel of the U.S. 5th Circuit Court of Appeals in New Orleans granted Texas officials an emergency stay of Yeakel’s injunction. So those provisions can go into effect. However, in January, the appeals court will hear the state’s challenge of that lower federal court decision and rule fully on the merits of the challenge. So portions of the law, ultimately, could be struck down — or upheld.
But it’s troubling that the appellate court panel decided that Yeakel’s opinion that the state had “no rational basis” for requiring abortion doctors to have admitting privileges nearby was one step away from “repudiating” the U.S. Supreme Court’s decision that a state may require only a physician to perform an abortion.
Yes, a state can require that — but it doesn’t need to. In California, for instance, Gov. Jerry Brown signed into law last month a measure that will allow specially trained nurse practitioners, physician assistants and certified nurse midwives to perform simple first-trimester abortions.
And it doesn’t matter if a doctor performing an abortion has hospital privileges or not. Anyone suffering a serious complication from an abortion — whether they were treated by a doctor with hospital privileges or not — is sent to an emergency room. “The evidence reflects that emergency room physicians treat patients of physicians with admitting privileges no differently than patients of physicians without admitting privileges,” wrote Yeakel in his decision.
And for a variety of reasons, many doctors performing abortions at facilities in Texas do not have hospital admitting privileges. So automatically, access to abortion dramatically decreases if this provision of the law goes into effect.
This law is not an attempt to make abortion safer for women, as some Texas officials who support it claim. It’s an attempt to chip away at abortion rights. Hopefully the federal appellate court will see through that attempt when it hears the case next year.
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