HOUSTON - Texas asked a federal appeals court in New Orleans for an emergency order blocking a U.S. judge’s ruling striking down some state abortion restrictions as it seeks to enforce new limits on the procedure that were set to take effect Tuesday.
The state asked the appeals court to temporarily block the Austin judge’s Monday order, which throws out a law requiring doctors to have hospital-admitting privileges within 30 miles of where they perform abortions.
Texas asked the court to rule by Tuesday night so the measure could be implemented immediately. The state also asked the court to expedite its appeal for hearing in January.
“There is no evidence - and no findings in the district court’s opinion - that any woman will face any obstacles to obtaining an abortion if the law takes effect,” Texas’ lawyers said in the filing in New Orleans appellate court.
The 5th Circuit Court of Appeals did not take action by the close of business Tuesday.
Planned Parenthood and a coalition of abortion providers convinced U.S. District Judge Lee Yeakel that many abortion providers lacked hospital-admitting privileges, forcing clinics to close and leaving women in wide swaths of the state without access to the procedure.
Lawyers for the abortion providers on Tuesday urged the appeals court to deny Texas’ bid to block the lower-court ruling and allow the state restrictions to take effect.
“Allowing the admitting privileges requirement to go into effect, even for a few weeks or months, would decimate the availability of abortion services in the state, as the undisputed evidence showed that one-third of the state’s providers cannot comply,” Janet Crepps, a lawyer for the providers, said in a filing.
Texas’ new rule “does not bear a rational relationship to the legitimate right of the state in preserving and promoting fetal life or a woman’s health,” Yeakel said in the ruling Monday. Yeakel declared the measure unconstitutional as a “ substantial obstacle” in the path of women seeking abortions.
Yeakel ruled on another abortion limitation passed by Texas lawmakers earlier this year, saying the state was within its rights to require doctors to follow Food and Drug Administration protocols when administering abortion-inducing drugs, even though the plaintiffs argued that safer methods of dispensing the medications have been developed.
Yeakel said the state’s restrictions won’t apply in cases in which doctors believe that following the newer medication procedures are necessary to safeguard a pregnant woman’s health.
State lawyers said in their filing, “Individual doctors do not have a constitutional right to second-guess the FDA’s medical judgments, and the Constitution provides no remedy simply because a judge concludes that the FDA has been too slow to approve a drug or update a protocol.” Texas asked the court to stay that part of Yeakel’s ruling as well.
Meanwhile, Oklahoma’s high court set the stage Tuesday for the U.S. Supreme Court to rule on the dispute over whether states may restrict doctors from prescribing the two drugs that are commonly used by women who seek an abortion in the first weeks of pregnancy.
Sponsors of the laws in Texas, Oklahoma and elsewhere said they want to protect the health of women. But medical experts and supporters of abortion rights said the laws would effectively ban medication abortions because the FDA protocol is outdated and conflicts with current medical practice.
Only one drug - mifepristone or RU-486 - was approved by the FDA in 2000 for inducing early abortions. In the past decade, however, physicians have regularly prescribed a second drug - misoprostol - to complete some abortions through nine weeks of a pregnancy. They also have prescribed RU-486 in much lower dosages.
After the doctors sued to challenge the state law, the Oklahoma Supreme Court ruled it unconstitutional last year in a three-paragraph opinion. The state’s attorney general appealed to the U.S. Supreme Court and argued the state judges had invalidated a reasonable law designed to regulate the safe practice of medicine.
In June, the Supreme Court justices tentatively agreed to take up the Oklahoma case but first asked the Oklahoma court to clarify whether the 2011 state law “prohibits … the use of misoprostol in conjunction with mifepristone.”
In Tuesday’s opinion, the Oklahoma court said the state law, as written, does prohibit the use of the second drug. It “effectively bans all medication abortions,” the state court declared.
Information for this article was contributed by Laurel Brubaker Calkins of Bloomberg News; by David G. Savage of the Tribune Washington Bureau; and by Chris Tomlinson of The Associated Press.
Front Section, Pages 3 on 10/30/2013