A three-judge appellate panel today unanimously upheld a Texas law to set safety standards for clinics that offer abortion. As a result only eight abortion mills might stay open. More than that, this decision strikes a blow against a trial judge who went beyond the law and even the pleadings.

The abortion case opinion

Three judges on the Court of Appeals for the Fifth Judicial Circuit all agreed (per curiam) in the case of Whole Woman’s Health et al. v. Cole and Robinson (docket #14-50928). At issue: Texas House Bill No. 2. For the first time, the State of Texas sought to regulate the kind of clinic where someone might do abortions, along the same lines as any clinic where doctors do “day surgery.” First, only a doctor may do an abortion. Second, a doctor doing an abortion must have the privilege to admit a patient to a hospital thirty miles away. Third, such a clinic must have gas-delivery pipelines and other built-in equipment to deliver anesthesia, must have rooms and doorways at least of a certain size, and must be as clean as any day-surgery clinic must be. Fourth, an abortion clinic must have a license from the State Department of Health and let the Health Department inspect it regularly. And last, the law forbids an abortion beyond twenty weeks, when the unborn child can feel the pain. (According to LifeNews, those opposed to this law did not even challenge it on this ground.)

The United States Supreme Court, with several March for Life participants in the foreground. Photo: CNAV files

According to Texas Tribune, the plaintiffs plan to petition for “cert” straight to the U.S. Supreme Court. They could have asked all fifteen Fifth Circuit judges to sit en banc and re-hear the case.

The three judges technically let the Whole Woman’s Health clinic in McAllen, Texas, stay open. That clinic has no doctor who may admit patients to a hospital 30 miles away. The judges felt the Supreme Court would never let them close the only clinic within 150 miles. But: as soon as any other clinic opens any closer to the Rio Grande valley, that obeys this new Texas law, the Whole Woman’s health clinic must either close for good, or make sure its medical staff get such admitting privileges. The McAllen abortion clinic hasn’t done abortions since 2013, and might not re-open in any case. (The problem: the McAllen abortion clinic cannot even recruit any doctor having admitting privileges within 30 miles to do abortions at their clinic. That might go to show fewer doctors today want to do abortions at all.)

The plaintiffs tried to get the appeals court to disallow any requirement that an abortion clinic work like an “ambulatory surgical center.” The panel in effect told them they should have filed that challenge in an earlier case a court had already decided. (Res judicata.) And even without that, the panel threw out the claim on its merits (or lack of them).

Americans United for Life filed its own friend-of-the-court brief in this case last November. “Profits before people,” said the head of AUL of the abortion clinics and the whole abortion industry.

Where does the case go from here?

As mentioned, the losers on this appeal plan to go to the Supreme Court. Denise Burke, writing at The Federalist on January 15, expected this. (Burke serves as Vice-President for Legal Affairs a AUL.) She also suggested the Justices might be itching for the chance to weigh in. The plaintiffs had asked the Supreme Court to enjoin Texas from enforcing its new law. The Court refused. But Justice Stephen Breyer specifically wrote: “[A]t least four Members of this Court will wish to consider” the question no matter what the Fifth Circuit did. The Fifth Circuit acted today. CNAV can probably name the four Justices who “will wish to consider” the case: Breyer, Ginsburg, Kagan, and Sotomayor.

As Burke says, the original Roe v. Wade opinion says the State has an interest in “[regulating] the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that may arise.” The Texas law addresses those precise questions.

What the Court will do, “we will soon find out.” Sadly, we will find out in the context of an alien de facto President who said, during his first campaign for the office, he would not have one of his daughters “punished with a baby.” Worse yet, the Supreme Court will not have time even to take the case up before its summer recess. So a decision will likely come down in June of 2016, in advance of the Republican and Democratic National Conventions.