By Dave Andrusko
Late Sunday night, Texas Attorney General Greg Abbott filed an emergency motion to the U.S. Court of Appeals for the 5th Circuit asking that the state be permitted to enforce a provision of Texas’ HB 2 that requires that abortion clinics meet the same building standards as ambulatory surgical centers (ASCs).
Abbott’s move was as expected as U.S. District Judge Lee Yeakel’s Friday afternoon decision declaring the provision unconstitutional. The provision was to go into effect yesterday.
According to Brian M. Rosenthal of the Houston Chronicle
“Abbott criticized Yeakel in his motion to the appellate court, saying the district judge ‘failed even to mention (much less follow) precedent’ from the appellate court and U.S. Supreme Court.
“He also argued that the state is likely to be able to get Yeakel’s decision reversed on appeal.
“That is what happened last fall, when Yeakel struck down a different part of House Bill 2 only to have his decision overturned by the appellate court.”
The latter is an allusion to a unanimous decision of a three-judge panel of the U.S. Court of Appeals for the 5th Circuit upholding a provision that required abortionists to have admitting privileges at a local hospital so that they might accompany women who have had complications following their abortions.
Judge Yeakel also struck down that part of HB 2 that required abortionists to have admitting privileges in a hospital within a 30-mile radius of the clinics where they work. Yeakel had previously struck down that requirement only to be reversed by that same federal appeals court panel which held the requirement was constitutional “on its face.”
However, on Friday Yeakel revisited the admitting privileges challenge “as applied.” 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.”
In his 21-page decision, Judge Yeakel wrote that the ASCs requirement “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.”
Pro-life Texas Gov. Rick Perry signed the omnibus HB 2 bill into law in July 2013.
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.
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, Judges Edith Jones, Catharina Haynes, and Jennifer Walker Elrod carefully outlined why the provisions are 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.
Litigants, represented by the Center for Reproductive Rights, contesting the building requirements told Yeakel during five days of testimony that the requirement is not needed and would have the effect of closing many abortion clinics in places outside major metropolitan areas.
But according to Kaiser Health News’ Carrie Feibel, Melissa Conway, spokeswoman for Texas Right to Life, said, “if the number of abortions and the number of clinics drops in Texas, that’s something she’s glad about, but it wasn’t the intent of the law. She said the regulations are about making abortion safer, so abortion providers should invest in the required upgrades.”
“’The choice to have fewer clinics comes down to the abortion providers,’ Conway said. ‘If they choose to have disregard for the health of women, and the safety standards, which are practical, common-sense and best standards, that’s their choice. But that points highly to the fact that they care more about their bottom line than they do their patient care.’”