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Texas Abortion Providers Ask Supreme Court to Intervene in Bid to Block New Rules

Veronica Zaragovia, KUT
State Sen. Wendy Davis, D-Fort Worth, takes a photo with an abortion rights advocate after her filibuster against a restrictive abortion law in Texas.

Update: Plaintiffs in a lawsuit aiming to block new abortion regulations in Texas have filed an emergency application with the U.S. Supreme Court to reinstate a lower court's injunction against portions of Texas' new abortion law. Read the entire emergency application here.

On October 28th, U.S. District Judge Lee Yeakel granted the plaintiffs' request to block a new rule requiring abortion doctors to have admitting privileges at a hospital within 30 miles of their clinic. But his ruling was overturned, at least temporarily, on Oct. 29 by the U.S. Fifth Circuit Court of Appeals until arguments in the appeal are heard in early January.

Justice Scalia has given the state until 4 p.m. on Nov. 12 to respond to the application request.

The plaintiffs say the new rule will force as many as 13 abortion clinics across the state to stop offering services.

Original story:

The U.S. Fifth Circuit Court of Appeals has overruled a block on abortion regulations in Texas and that's led providers to stop offering abortion services in one-third of clinics across Texas. The state has 36 of them.

That’s because the Fifth Circuit Court of Appeals in New Orleans lifted a permanent injunction on abortion regulations last night. 

Earlier this week, U.S. District Judge Lee Yeakel struck down a requirement that abortion doctors must receive admitting privileges at hospitals within 30 miles from the clinic. But that has been reinstated by the Fifth Circuit Court for now after state officials filed a request for an emergency stay against the ruling by the lower court.

The Fifth Circuit Court wrote the following in its decision to grant the state's request for an emergency stay: "The State offered more than a 'conceivable state of facts that could provide a rational basis' for requiring abortion physicians to have hospital admission privileges. The State offered evidence that such a requirement fosters a woman’s ability to seek consultation and treatment for complications directly from her physician, not from an emergency room provider."

Read the entire opinion from the appellate court here.

Plaintiffs in the Planned Parenthood vs. Abbott case say they're considering their legal options, including appealing last night's ruling all the way to the U.S. Supreme Court. 

"I do think it’s quite likely that we’ll be going to the Supreme Court," said Amy Hagstrom Miller, founder and CEO of Whole Woman’s Health. "The challenges in the interim, I might not be able to keep facilities open during that time frame."

Abortion providers hadn't yet heard from hospitals regarding admitting privileges applications today, though they will continue to seek them. Hagstrom Miller says her company canceled 45 appointments since the emergency stay went into effect last night at her clinics combined. She might furlough or lay off at least 20 staff members in the interim.

Whole Woman's Health does have admitting privileges in Austin and Beaumont, and she says a physician who has admitting privileges but lives in the Northeast will fly to San Antonio approximately once a month to provide abortions. Planned Parenthood does not have admitting privileges in Austin, but will continue to offer other health services. Presently, abortion providers in Harlingen, Killeen, Waco, Lubbock, Fort Worth and McAllen do not have admitting privileges, among others. Reproductive Services in El Paso says at least one physician who works with them is awaiting response about an admitting privileges application. 

Providers are considering joining forces to offer bus services for women who must travel far distances to clinics that have physicians with admitting privileges, but that's not certain yet. 

House Bill 2 also requires doctors to follow the Federal Drug Administration regimen for drug-induced abortions. While Yeakel ruled that if a physician determined a woman's health was at risk, he or she could use an evidence-based protocol that includes a lower dosage of the medication and the second round can be taken at home instead of in the presence of the physician.

“I’m being careful about the exceptions,” Hagstrom Miller says. “Because I don’t think they’re very well defined. Right now we can only offer it up to seven weeks, and I’ve got to have the same patient come in to see the same physician for four visits and so that’s what we’re following.”

The up to four visits is a result of a 2011 Texas law that requires two visits – first a required ultrasound with a physician, then returning for the abortion at least 24 hours later.

In a statement released by the office of Gov. Rick Perry, the Governor praised the decision from the Fifth Circuit Court. “Today's decision affirms our right to protect both the unborn and the health of the women of Texas. We will continue doing everything we can to protect a culture of life in our state.”

Oral arguments have been set for the week of Jan. 6, 2014. 

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