By Dave Andrusko
On September 12, the U.S. 5th Circuit Court of Appeals will hear arguments from the state of Texas and the Center for Reproductive Rights which is representing a coalition of abortion providers over whether Texas will be allowed to enforce a key provision of House Bill 2, the omnibus 2013 pro-life bill.
Last Friday, in a 21-page decision, U.S. District Judge Lee Yeakel wrote that the requirement that abortion clinics meet the same building standards as ambulatory surgical centers “burdens Texas women in a way incompatible with the principles of personal freedom and privacy protected by the United States Constitution for the 40 years since Roe v. Wade.” The requirement had been scheduled to take effect last Monday.
Sunday evening Texas Attorney General Greg Abbott filed an emergency motion to the 5th circuit to allow enforcement, but it was rejected.
As reported by NRL News Today Yeakel also partly rolled back a rule that a three-judge panel of the 5th district had already allowed to go into effect—the requirement that abortionists have admitting privileges at a hospital within 30 miles of the abortion clinic. He concluded this requirement should not apply to Whole Woman’s Health in McAllen and Reproductive Services in El Paso.
Yeakel had already once struck down that admitting privileges requirement only to be reversed by the appeals court panel comprised of Judges Edith Jones, Catharina Haynes, and Jennifer Walker Elrod which held the requirement was constitutional “on its face.” Undeterred, Yeakel revisited the admitting privileges challenge “as applied” in his decision.
He wrote, “The court concludes that the act’s ambulatory-surgical-center requirement, combined with the already-in-effect admitting-privileges requirement, creates a brutally effective system of regulation that reduces access to abortion clinics.” Together, he concluded, these provisions “place an unconstitutional undue burden on women throughout Texas and must be enjoined.”
Pro-abortionist have contested other provisions of HB 2, including (as noted above) the requirement that abortionists secure admitting privileges in a hospital within 30 miles of the abortion clinic when there are complications. In their 34-page opinion, Jones, Haynes, and Elrod carefully outlined why the provision is not an “undue burden” on the right to abortion.
HB 2 also requires that the abortionist be in the same room as the woman receiving the chemical abortifacients (which is not the case with so-called ‘web-cam” abortions) and that abortionists follow the protocol approved by the FDA for the use of the two-drug “RU-486” abortion technique. The appeals panel upheld that provision as well.
Significantly, opponents did not challenge the Pain-Capable Unborn Child Protection Act, which is part of HB 2. This provision prohibits killing unborn children who have reached the developmental milestone of being able to feel pain, which substantial medical evidence places at 20 weeks, if not earlier.