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5th Cir. Abortion Cases Could Set Future Limits Nationwide

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By William Peacock, Esq. on September 17, 2014 2:53 PM

This is one of those knock-down, drag-out, war-of-attrition fights. Texas, Mississippi, and Louisiana have all recently passed restrictive laws on abortions. Abortion providers pushed back, arguing against the laws before conservative Southern courts. And it's not just one issue; there are facial and as-applied challenges to every variation on an abortion restriction one can imagine: admitting privileges, surgical clinic standards, 20-week bans, limits on non-surgical abortions, and more.

The results, somewhat surprisingly, have been mixed. A facial challenge to a Texas admitting privilege law as upheld by the Fifth Circuit, but an as-applied challenge out of Mississippi was narrowly upheld by a different panel over a very passionate dissent. Both cases have en banc requests pending. And the Fifth Circuit just heard oral arguments regarding the Texas surgical-standards provision for abortion clinics, a requirement which could force 13 of the state's 20 clinics to close.

Though abortion laws are being passed and tested throughout the nation, the Fifth Circuit's docket seems to have a new abortion case listed every month. And with both pro-life and pro-choice sides dug in for the long haul, it wouldn't be a surprise to see one or more of these cases reach the Supreme Court.

Abortion Appeals Tracker

Here's everything we have, so far, on recent Fifth Circuit abortion cases:

Admitting Privileges:

Surgical-Standards Provision:

Fifth Circuit Anti-Abortion

Everyone knows that the Fifth Circuit has conservative leanings, but how anti-abortion is the circuit?

Jeffrey Toobin, writing for The New Yorker, states that "the members of the Fifth Circuit panel seem to believe that anything short of a nationwide ban on abortion does not amount to an undue burden on women's rights."

But then again, a panel of Fifth Circuit judges sided with challengers to Mississippi's admitting privileges law.

Interestingly, the panel for the recent oral arguments about Texas's surgical-standards requirement is a microcosm of the court has a whole: Judge Jerry Smith and Judge Jennifer Walker Elrod sided with Texas in two previous abortion cases, but Judge Stephen Higginson voted with the majority in the Mississippi case.

Either way, every case is going to end in en banc and Supreme Court certiorari petitions. And with these states passing more and more laws restricting abortions, it seems like it's only a matter of time before one of those cert. petitions is granted.

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