Some Good Legal News


baby-gavelIn 2013 the Texas legislature passed, and Governor Rick Perry signed, enormously significant pro-life legislation that helps to protect the unborn child and the health of the mother of the unborn child. The law prohibits the killing of the unborn after 20 weeks gestation, requires any physician performing abortions at abortion facilities in the State of Texas to have admitting privileges at a hospital no farther than thirty miles from the facility, and mandates that all abortion facilities be licensed as ambulatory surgical centers.

The ambulatory surgical center license has requirements in two categories. It requires that the operator have certain expertise in management, record keeping, and general operation, and it also requires a physical plant that meets size, HVAC, plumbing, and other requirements.

Many of the physicians doing abortions in Texas do not have, and likely cannot obtain, privileges at a hospital within thirty miles of the center where they kill. And very few abortion facilities have the requisite staff and operational expertise or the requisite physical plant to be licensed ambulatory surgical centers.

While the abortion industry has not (yet) challenged the 20-week prohibition, it did attack the admitting privilege and the ambulatory surgical center parts of the law. The admitting privilege requirement, which was to go into effect on September 1, 2013, was attacked in federal district court in Austin last year.

That requirement was struck down by the Austin court. But on appeal it was upheld by a three judge panel of the U.S. Court of Appeals for the 5th Circuit, and this requirement has been enforced by the state since the 5th Circuit’s ruling. The result has been medically safer procedures (for the women even if not for the child), and fewer abortion facilities in the state.

Earlier this year the abortion industry sued to stop the enforcement of the requirement that all facilities be licensed as ambulatory surgical centers. That provision was to have gone into effect on September 1, 2014. The suit was filed in the court of the same federal district judge in Austin who had ruled on the admitting privilege provision in 2013. After a brief trial the judge ruled that this provision of the law was unconstitutional, and immediately enjoined its enforcement statewide.

The stated basis of the ruling was that many abortion businesses would close in more rural areas, leaving only facilities in major metropolitan areas. This, said the trial judge, would force women seeking abortions to drive 150 to 200 miles for an abortion, and that would be constitutionally deficient. The state appealed his ruling to the 5th Circuit, and asked for a stay of the trial court’s injunction against enforcement of the provision while the case is on appeal.

The trial court’s ruling was particularly excessive in that it went beyond what the plaintiffs had even requested. The plaintiffs had asked for a ruling that the ambulatory surgical center provision was unconstitutional. They also asked the trial court to reconsider the matter of the admitting privileges requirement, but only as to certain named abortion facilities in the Rio Grande Valley in McAllen south Texas and in El Paso.

They did not ask the court to rule again on the admitting privilege law for all facilities in the entire state. However, the trial court did just that, ruling that both the ambulatory surgical center law and the admitting privilege requirement as to the entire state were unconstitutional.

On October 2, 2014, a three-judge panel of the 5th Circuit granted a stay of the trial court’s injunction virtually in its entirety. The appellate court upheld the injunction against the ambulatory surgical center requirement as to only the one plaintiff in the lawsuit, which operates an abortion facility in El Paso, Texas. Yet even that exception was limited to only the physical plant requirements, and not the operational requirements. Other than that one exception, the injunction was stayed.

On the issue of the trial judge’s renewed injunction against the admitting privilege provision, the appellate court rule that the admitting privilege requirement had already been decided by the 5th Circuit in the case from 2013, and that the injunction was erroneously granted. The court also noted that the trial judge was bound to follow precedent, including the 5th Circuit’s decision on the same issue handed down just last year.

In summary, the appellate court ruled that the State of Texas is likely to succeed on the merits. That is, when the substance of the law is before the court it is likely that the law will be upheld as constitutional. This conclusion was based on the court’s conclusion that the law is rationally related to a legitimate interest of the state (in this case the health of the woman having an abortion), and that the law did not impose an undue burden a woman’s exercise of her constitutional right to an abortion.

That is, the appellate court decided that the law was intended to further patient health and safety, that there was a reasonable connection between the law and that intended purpose, and that even if enforcement of the law required a lengthy drive from a rural area to a metropolitan area, that was not an undue and illegal burden on a woman’s legal rights.

(As an aside it is worth pointing out that Planned Parenthood is not a named plaintiff in the case. This may be because Planned Parenthood has built mega centers in most of the major metropolitan areas of Texas which meet the requirements of the law for ambulatory surgical centers. Planned Parenthood will likely have less competition and make much more money if this provision of the law is enforced.)

It bears repeating that this most recent 5th Circuit decision is not a decision directly on the merits of the law, and is limited to granting a stay of the trial court’s injunction against the state’s enforcement of the law while the matter is on appeal. Also, and not surprisingly, the plaintiffs have appealed to the U.S. Supreme Court for immediate relief from the stay. Nevertheless, the conclusion of this 5th Circuit panel that the state will likely prevail in showing that the law is constitutional is very good news.

With the trial court’s injunction stayed, the law is currently being enforced, and the number of abortion facilities in Texas has been significantly reduced. The abortion industry claims that there are only seven facilities in the entire state which can now legally operate. That is even better news. One can only hope and pray that when the matter is decided on the merits that the law will be upheld as constitutional.

This is a time to remember that elections have consequences. There are judges on the 5th Circuit who have thus far given the 2013 Texas law a fair review because someone nominated people to that court who were reasonable and not so prejudiced by ideology against the culture of life as to be unable to apply the law fairly and objectively. But those judges would not have had anything to review had the voters of Texas not voted men and women into the legislature and governor’s mansion who respect life, and whose vision of society does not include the wanton destruction of innocent life in the womb, at any time for any reason.

A final thought.

Last week, on the day after the 5th Circuit decision granting the stay of the injunction, some of my colleagues and friends from Catholics United for Life of North Texas, all faithful warriors for life for literally decades, came to the abortion center in Ft. Worth where we have been coming week after week, month after month. The owner is one of the named plaintiffs in the lawsuit.

There were no abortions done that day, and if the law is upheld on the merits there will likely never be abortions done anymore at that site. But the pro-life warriors came to pray anyway.

They came to pray in thanksgiving for the court’s ruling, and for a permanent end to the killing at that blood drenched place in north Texas. As always they came also to pray for the women who come to abortion centers to kill their own flesh and blood, and not least, for those who do the killing. And to pray as well for the people of Texas who will vote next month for a governor, lieutenant governor, attorney general, and a multitude of state senators and representatives, that the voters will act in accordance with a vision of a society that welcomes and protects all life.


About Author

Robert J. Gieb has practiced probate law in Ft. Worth, Texas for thirty years. He is local counsel for Catholics United For Life of North Texas.