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Federal appeals court allows Texas abortion restrictions to take effect

The US Court of Appeals for the Fifth Circuit [official website] on Thursday ruled [opinion, PDF] Thursday Texas can enforce a law that prohibits doctors from performing abortions [HB 2 text] if the doctor does not have admitting privileges at a nearby hospital. The law's constitutionality was challenged by Planned Parenthood [advocacy website]. The court held that the state has a substantial interest in regulating the medical profession and protecting the medical profession's ethics and integrity. The court found that evidence showed that "such a requirement would assist in preventing patient abandonment by the physician who performed the abortion and then left the patient to her own devices to obtain care if complications developed." The court also held that though the law may result in increased costs for accessing an abortion provider and decreased physicians available to perform abortions, the law does not facially indicate that its purpose is to create substantial obstacles for women seeking abortions. The court relied on a 2007 US Supreme Court case, Gonzales v. Carhart [opinion], which held that "[t]he fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it." The Fifth Circuit on Thursday also stayed a district court injunction [JURIST report] against a portion of HB 2 that restricts medication abortions to the FDA protocol, which approved only the drug mifepristrone and is limited as to its use, dosage and administration. Nationwide, the vast majority of medication abortions are off-label protocols. However, the Fifth Circuit held that unlike the district court's broad application of the injunction, it can only apply to mothers at a certain stage in their pregnancies if the physician who is to perform the abortion has decided that a surgical abortion would be medically unsafe for the mother.

This is the latest development in the ongoing reproductive rights controversy [JURIST backgrounder] in the US. Last month the American Civil Liberties Union (ACLU) filed suit [JURIST report] against Ohio officials, claiming that the inclusion of three abortion-related amendments in the state budget violate the state constitution. The US Court of Appeals for the Ninth Circuit [official website] ruled [JURIST report] in August against an Arizona law [HB 2800, PDF] that disqualified health providers that perform abortions, such as Planned Parenthood, from receiving public funds. Also in August Planned Parenthood of Indiana and Kentucky [advocacy website] sued [JURIST report] the Indiana State Department of Health [official website] challenging a new regulation that defined facilities prescribing Mifepristone as abortion clinics and required them meet regulatory requirements of surgical facilities, even when they do not provide surgical procedures. A similar bill, which passed [JURIST report] in Alabama in April, has received criticism as a "back-door" attempt [JURIST op-ed] to circumvent a woman's right to abortion.

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