Americans United for Life (AUL) filed briefs today in two important abortion cases now before the Fifth Circuit Court of Appeals.  Each case involves recently enacted laws designed to protect women from the dangers inherent in America’s largely unregulated, unrestricted, and unrepentant abortion industry.

Texas case:  Planned Parenthood v. Abbott

AUL filed an amicus curiae (“friend of the court”) brief in Planned Parenthood v. Abbott, a legal challenge launched by the nation’s largest abortion provider against commonsense abortion regulations enacted in Texas this past summer following a Special Legislative session.  House Bill (HB) 2 included a ban on abortions after five months of pregnancy, requirements that abortion clinics meet the same patient care standards as other facilities performing outpatient surgeries, a mandate that abortion providers have hospital admitting privileges, and restrictions on the administration of abortion-inducing drugs such as RU-486.

In its lawsuit, Planned Parenthood is only challenging the admitting privileges requirement and the new regulation governing the provision of abortion-inducing drugs.  The regulation on abortion-inducing drugs (or chemical abortions) requires abortion providers to examine a woman before dispensing the drugs and mandates that the drugs be administered only in the way approved by the U.S. Food and Drug Administration (FDA).  These protective requirements were based, in part, on AUL model legislation, the Abortion-Inducing Drugs Safety Act.

Earlier this fall, a federal district court in Austin ruled that the regulation on abortion-inducing drugs did not pose an “undue burden” for most women, but noted that it might pose a hardship for some women with certain medical conditions.  To that end, the court improperly imposed a “health” exception on the regulation, which means that any abortion provider can refuse to follow the requirements as long as he or she claims the noncompliance is in the broad “health” interest of the woman.

In response, Texas filed an emergency appeal in the Fifth Circuit, which immediately stayed the district court’s overly broad injunction and allowed the regulation to go into effect.  Last week, the U.S. Supreme Court denied an application by Planned Parenthood to stay both the admitting privileges requirement and the abortion-inducing drugs regulation while litigation continues.

The Fifth Circuit’s decision in this case is a significant bellweather for the future of chemical abortion regulations.  If its decision allowing the provision to go into effect is any indication of its decision on the merits of the case, the Fifth Circuit is likely to uphold the Texas law.  This means that two federal appellate courts—the Fifth Circuit and the Sixth Circuit—will have upheld state regulations of chemical abortions, providing greater authority and support to other states seeking to protect women from the harms of this dangerous practice.   On the other hand, two state courts—the Oklahoma Supreme Court and a trial court in North Dakota—have invalidated similar laws, and such a “court split” makes it even more likely that the U.S. Supreme Court will soon decide the constitutionality and viability of regulations on abortion-inducing drugs.

AUL’s brief demonstrates that U.S. Supreme Court precedent supports regulating abortion-inducing drugs and that medical data—including the FDA’s intent to restrict use of abortion-inducing drugs and the risks inherent in chemical abortions—support Texas’ regulation.

Mississippi case:  Jackson Women’s Health Organization v. Currier

AUL filed a second amicus brief in Jackson Women’s Health Organization v. Currier, a challenge to a 2012 Mississippi law requiring any abortion provider who performs 10 or more abortions per month to have admitting privileges at a local hospital.  Jackson Women’s Health Organization, the state’s only abortion clinic, has challenged the law.

A federal district court in Jackson initially granted in part, and denied in part, the clinic’s motion for a preliminary injunction against enforcement of the law.  The court initially allowed the law to take effect, requiring the clinic’s providers to seek admitting privileges within the time the law allotted for them to do so, but also enjoined state officials from imposing any criminal or civil penalties for the continued operation of the clinic while the required privileges were being sought.  Since then, providers at the Jackson clinic have been denied admitting privileges by all local hospitals.  In light of this development, the district court subsequently enjoined the law as an “undue burden” because it would certainly mean the closure the clinic.

In Roe v. Wade, the U.S. Supreme Court found that the State’s legitimate interest in regulating abortion to protect maternal health “obviously extends at least to [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.” However, the district court’s analysis, elevating in-state “access” to an abortion clinic over the long-recognized State interest in protecting maternal health, virtually immunizes abortion clinics from medically appropriate and commonsense regulation if their failure to comply would close their doors.

In the over 40 years since Roe v. Wade was decided, there have been innumerable examples of substandard care and conditions in the nation’s “legal” abortion clinics, demonstrating that state regulation and oversight of abortion clinics and abortion providers is absolutely necessary.  The trial of now-convicted murderer Dr. Kermit Gosnell brought attention to the tragic impact that the “legal” abortion industry has had on women’s health.  However, Gosnell’s clinic was not an aberration. In fact, since 2009, abortion providers in at least 29 states have faced investigations and/or have been cited for violating state laws governing the provision of abortions.

AUL’s brief argues that the district court’s analysis should be rejected as contrary to U.S. Supreme Court precedent.  Specifically, the court improperly dismissed the State of Mississippi’s legitimate interest in regulating abortion to protect maternal health and created a new “right” for abortion clinics to a perpetually unregulated existence – an existence with obviously dangerous consequences for women’s health.