A ruling by the Fifth Circuit Court of Appeals on Tuesday will close over 30 abortion clinics in Texas, likely leaving fewer than 10 open across the state. It’s no surprise to see the circuit’s judges rule against women’s rights. As we explained in a 2013 report, the decisions of the court’s Republican-appointed majority often reflect the conservative policy agenda of the presidents who appointed them, including opposition to reproductive rights.
The court upheld two state laws, one of which requires abortion providers to have admitting privileges at local hospitals and the other which requires abortion facilities to meet stringent ambulatory surgical center standards. These laws, like many others across the country, are passed under the guise of protecting health and safety. In reality, they are thinly-veiled attempts to shut down abortion clinics completely. Many facilities can’t afford the high costs of compliance, and local hospitals often refuse to grant admitting privileges. In Mississippi, for example, a similar law threatens to close the state’s last remaining clinic—a story told in AFJ’s 2013 film, Roe at Risk.
Tuesday’s decision is the latest in a string of rulings restricting access to abortion across the circuit. And two of its authors, President George W. Bush appointees Jennifer Walker Elrod and Catharina Haynes, are at the center of this trend.
Last year, both judges joined Judge Edith H. Jones in a similar ruling which upheld Texas’s hospital admitting privileges requirement and a restriction on medication abortions. Despite predictions that upholding the laws would leave 24 counties in the Rio Grande Valley without an abortion provider, the panel sided with the state because most women in Texas don’t live in the Valley. In other words, the court denied a constitutional right to an entire subset of Texas women—namely, those who live in rural areas and who cannot afford to travel long distances to find a provider. Judge James L. Dennis, dissenting from the full court’s decision not to review the case en banc, said the ruling “threaten[s] to annihilate the constitutional protections afforded women under Roe [v. Wade].”
Both judges also joined Judge Priscilla R. Owen in 2013 to stay a district court’s injunction against the laws. That ruling was left in place by the Supreme Court in a 5-4 decision.
In 2013, Judge Haynes voted to uphold a Louisiana law that broadened the malpractice liability of abortion providers by allowing women to sue for damages to the fetus, while also denying them access to the state-run malpractice insurance fund. By increasing the cost of providing abortions, the law could drive providers out of the state.
The Supreme Court may end up having the last word. A different Fifth Circuit panel—of which neither Haynes nor Elrod were members—struck down the Mississippi laws profiled in Roe at Risk, and that decision has been appealed to the Supreme Court. In the coming weeks, the Court is expected to decide whether to take the case. If it does, it should affirm the ruling and make clear to all the circuit’s judges that women’s constitutional right to abortion must be protected.