Supreme Court asked to block Texas abortion law

HOUSTON - Planned Parenthood and other women’s health activists are asking the U.S. Supreme Court to step into their fight to block new restrictions on Texas abortion providers.

The groups filed an emergency petition Monday - the same day the high court stepped back from a dispute over a now-nullified Oklahoma law to limit drug-induced abortions - to freeze the law after a New Orleans-based federal appeals court last week said the measure could take effect. The appellate court put on hold a trial judge’s Oct. 28 ruling that the new limits and requirements were unconstitutional.

“The evidence showed that, absent an injunction,the law would have an unprecedented and devastating effect on women’s abilities to obtain an abortion,” Janet Crepps, the activists’ attorney, said in the application to U.S. Supreme Court Justice Antonin Scalia, who oversees emergency requests for the appeals court with jurisdiction over Texas.

“In just the few short days since the injunction was lifted, over one-third of the facilities providing abortions in Texas have been forced to stop providing that care, and others have been forced to drastically reduce the number of patients to whom they are able to provide care.”

Scalia told Texas to respond to the request by Nov. 12.

Texas Gov. Rick Perry, a Republican, signed sweeping new restrictions on abortion into law this year in spite of a last-ditch effort by Democrats, led by state Sen. Wendy Davis, to kill the law with a filibuster.

“We believe the Fifth Circuit panel’s unanimous decision was correct and will continue to defend the law before the U.S. Supreme Court,” Lauren Bean, a spokesman for Texas Attorney General Greg Abbott, said in an email.

Activists sued to block the new restrictions in federal court in Austin. After a three day nonjury trial last month, U.S. District Judge Lee Yeakel granted an injunction permanently preventing Texas from enforcing two measures, including a requirement that doctors have admitting privileges at hospitals within 30 miles of the clinics where they perform abortions.

Planned Parenthood presented evidence at trial that many doctors who perform abortions lacked local hospital admitting privileges in Texas and would have to stop performing them immediately. This would leave women in wide swaths of the second-largest state without ready access to the procedure, the clinics said.

Texas appealed Yeakel’s ruling the next day and won an emergency order from the New Orleans appellate court that overturned his decision. The appellate judges said the activists weren’t likely to succeed on appeal so Texas should be allowed to begin enforcing its new abortion restrictions right away.

“This can’t be what the Supreme Court intended” in establishing guidelines for what restrictions states can legally impose on abortion, Nancy Northup, president of the Center for Reproductive Rights, said on a conference call with reporters.

“They can’t have meant to give politicians and state legislators license to do underhandedly what they can’t do directly, which is to pass trumped-up regulations to shut down clinics or ban abortion entirely,” she said.

Ken Lambrecht, president of Planned Parenthood of Greater Texas, said his organization canceled appointments for 100 women who had abortion procedures scheduled for last Thursday. He said as many as 20,000 women a year seeking abortions in Texas could be turned away unless the court blocks the hospital-privileges law.

“These are women who’ve made a deeply personal and complex decision, but because of politicians are losing access to their constitutionally protected rights,” Lambrecht told reporters on the conference call. “These women will continue to seek this care if it’s safe and accessible or not.”

Other federal courts have reviewed other states’ abortion restrictions, and the 5th Circuit’s ruling in favor of Texas’ limits is “an outlier among these opinions,” Crepps said.

“The majority of courts that have looked at this so far have gotten it right,” she said. “The 5th Circuit got it all wrong.”

The three-judge appellate panel acknowledged that the provision “may increase the cost of accessing an abortion provider and decrease the number of physicians available to perform abortions.” However, the panel said that the Supreme Court has held that having “the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate” a law that serves a valid purpose, “one not designed to strike at the right itself.”

The appellate panel’s ruling is temporary until it can hold a complete hearing, likely in January.

Scalia can temporarily reinstate the Austin judge’s injunction and block Texas from enforcing the admitting privileges rule by finding the law causes irreparable injury during the time it is being debated in court, Crepps said. Texas and the activist groups will argue the full merits of the state’s restrictions to the New Orleans appellate court in January, Crepps said. The loser could then attempt to bring the case back to the high court for full review.

OKLAHOMA LAW STRUCK

The high court Monday dismissed what would have been its first abortion showdown since 2007, backing out of the clash over an Oklahoma law that sought to restrict drug-induced procedures. The court left intact an Oklahoma Supreme Court decision that struck down a 2011 state law on the grounds it put an unconstitutional burden on women seeking an abortion.

The Supreme Court in June took the unusual step of saying it would review the dispute while simultaneously asking the state’s highest court to clarify what the law covered. The Oklahoma court responded Oct. 29 by saying the measure “effectively bans all medication abortions.”

The U.S. Supreme Court then reassessed its involvement and Monday said, in a one-sentence order, that it wouldn’t hear the case after all.

“I think what we’re seeing is that Americans generally, according to opinion polls and the actions of their legislatures, are unhappy with federal control of abortion that we’ve had since Roe v. Wade,” said Casey Mattox, senior counsel at the anti-abortion Alliance Defending Freedom.

The Oklahoma dispute tested requiring doctors to follow Food and Drug Administration instructions in dispensing abortion-inducing drugs. Abortion-rights advocates say the FDA-approved protocols no longer represent the safest approach and that doctors must be able to prescribe drugs “off label.”

“The Supreme Court has let stand a strong decision by the Oklahoma Supreme Court that recognized this law for what it is,” said Northup, whose Center for Reproductive Rights sued to challenge the Oklahoma rules. The law was “an outright ban on a safe method of ending a pregnancy in its earliest stages and an unconstitutional attack on women’s health and rights.”

Abortion-inducing pills have transformed the procedure - and the debate - since their approval in the U.S. more than a decade ago. Rather than visiting a clinic, which can be subject to protests and tight regulations, a woman early in her pregnancy can start an abortion by taking a pill at her doctor’s office and finish the process at home.

The central question for the Oklahoma Supreme Court was whether the state measure would bar doctors from using misoprostol, an ulcer drug, because it hadn’t been approved by the FDA for abortions.

Oklahoma officials urged the court to say that the statute didn’t cover misoprostol. That interpretation might have increased the chances that the U.S. Supreme Court would uphold the measure.

The Oklahoma court instead said the language ofthe law indicated it covered misoprostol, barring its use in abortion.

“Given the Oklahoma Supreme Court’s overly broad and erroneous interpretation of the Oklahoma law, the U.S. Supreme Court had little choice but to dismiss the case,” Oklahoma Attorney General Scott Pruitt said in a statement Monday. “We are disappointed with the state court’s interpretation of a law that was crafted by the legislature to protect Oklahoma women from potentially deadly protocols that have never been approved by the FDA.”

The Oklahoma court also said the statute would bar the use of another drug, methotrexate, in treating ectopic pregnancies.

Doctors use misoprostol alongside another drug, mifepristone, which also would have been affected by the Oklahoma law. Doctors now typically use only a third of the mifepristone dosage approved by the FDA in 2000 and prescribe it as long as nine weeks into pregnancy, two weeks longer than what the FDA originally approved. Information for this article was contributed by Laurel Brubaker Calkins, Greg Stohr and Andrew Harris of Bloomberg News, and by Mark Sherman of The Associated Press.

Front Section, Pages 1 on 11/05/2013

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