Skip to main content
Supreme Court of the United States

What the 5th Circuit’s Decision on Texas’s Abortion Law Didn’t Say…

October 17, 2017

By Casey Mattox 

Yesterday the Fifth Circuit upheld Texas’s new regulations of abortionists. The law at issue, known as “HB2” (House Bill 2), was the subject of a firestorm of debate last summer, including a well publicized filibuster by state Senator, now Texas gubernatorial nominee, Wendy Davis. The Court held that it is constitutional to require abortionists to have privileges at a local hospital so that they can expedite and participate in the patient’s care in case of a complication and to require abortionists to comply with the FDA’s requirements for chemical abortions (RU-486). 

The Supreme Court had already refused to issue a temporary injunction to stop the law from going into effect while the case proceeded. After 2 decisions from the Fifth Circuit it is likely that the case may now head back to the Supreme Court again where it could lead to a landmark decision. But those who saw last summer’s debates but haven’t followed the case closely may wonder why the Court didn’t weigh in on Texas’s restriction on abortions after 20 weeks gestation, where the unborn child can feel pain. After all, that was the centerpiece of the controversy and Wendy Davis opposed it at length.

The fact is that for all of the talk about how the late term abortion restriction would supposedly harm women, Planned Parenthood didn’t challenge it. The Texas restriction on abortions after 20 weeks has been in effect without challenge since October.

This is no surprise. Planned Parenthood and other abortion businesses have taken a similar posture with almost every other law limiting abortions after the unborn child can feel pain. Similar laws have been enacted, over the strenuous objections of big abortion in 12 other states. Yet, for all of the talk about how they would harm women’s health, abortionists have chosen not to challenge any of them in federal court except those in the Ninth Circuit. In fact, when an abortionist challenged the Georgia law, it did so in state court and has expressly argued that it is bringing only state law claims and is not asking for any decision on U.S. constitutional grounds.

Notably, despite the fact that these restrictions are presently in effect in 10 states, I am aware of no reported instance where they have negatively affected a woman’s health. But reality aside, why have abortion advocates chosen not to challenge these laws that they spill so many words attacking? Fear. They know that their arguments for late term abortion are likely to fail outside the Ninth Circuit – and probably in the Supreme Court. As MSNBC reported, there is

“a strategic reason to avoid challenging that [20-week] ban…. [A] Texas challenge would go to the conservative Fifth Circuit. Not only would that court potentially uphold the law … , the combination of decisions would create a split in the circuits that would make the Supreme Court likelier to hear it.”

This isn’t the first time Planned Parenthood and its allies have cried wolf – claiming to oppose late term abortion restrictions on the ground that they would harm women’s health … only to fail to challenge those same laws or produce any evidence that the laws actually had the effect they claimed they would have. It also claimed that the Partial Birth Abortion Ban Act would harm women’s health. But when the Supreme Court called its bluff and invited abortionists to file an “as applied” challenge to that law whenever any woman truly needed the procedure for health reasons, Planned Parenthood went mysteriously silent. Almost 7 years later, Planned Parenthood has identified no such cases.

The Fifth Circuit’s decision is excellent. But it may be most significant for what it didn’t say – because it didn’t have to. Like Planned Parenthood’s overheated claims about the Partial Birth Abortion Ban Act, every day that passes where abortionists leave fetal pain statutes on the books is further testimony that Planned Parenthood’s claims cannot be trusted. The notorious Texas filibuster and surrounding firestorm is a perfect illustration of Planned Parenthood’s attacks on any law that impacts its bottom line. “Full of sound and fury, signifying nothing.”

It’s time that both courts and lawmakers realized that Planned Parenthood just can’t be trusted.

There's a big difference between what Planned Parenthood says, and what they do. Investigate Their Plan!

Alliance Defending Freedom

Alliance Defending Freedom

Non-profit organization

Alliance Defending Freedom advocates for your right to freely live out your faith

Pro-life rally for Dobbs v. Jackson Women's Health Organization at U.S. Supreme Court
A Rally for Life: How the Pro-life Movement Spans Boundaries

Dobbs v. Jackson Women’s Health Organization will provide the best opportunity in a generation to overturn Roe and Casey.

Dobbs Roe v. Wade
What You Need to Know About One of the Biggest Abortion Cases Since Roe v. Wade

The reality is that our federal abortion laws are stuck in the past. So, it makes sense that Mississippi would want its state law to reflect our modern scientific knowledge.

Sanctity of Life
This New Bill Could Mandate Unrestricted Access to Abortion

While claiming to protect women’s health, this legislation fails to acknowledge the physical and mental toll abortion has on women—to say nothing of the unborn female lives being aborted.