By Dave Andrusko
When we last discussed the latest string of legal challenges to HB 2, Texas’ omnibus pro-life bill, we emphasized how complicated the cases were and that the courts were just getting started.
Beginning in the new year—January 7, to be precise—the U.S. Court of Appeals for the Fifth Circuit will hear oral arguments about the constitutionality of the 2013 law. HB 2 catapulted pro-abortion state Senator Wendy Davis to media celebrity. Like Icarus, however, Davis flew too close to the sun: she lost her bid to become governor by nearly a million votes.
One part of the bill has never been challenged in court. The Pain-Capable Unborn Child Protection Act 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.
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Various courts have addressed other major components. One part of HB 2 requires that all abortion clinics meet the standards of ambulatory surgery centers. The New Orleans-based 5th circuit court has twice reversed lower court orders that found that part of the law unconstitutional. However abortion clinics were cheered when in a brief five sentence order the United States Supreme Court blocked enforcement of that provision.
HB 2 also requires that a clinic have an abortionist with admitting privileges to a local hospital, in case of emergencies. The U.S. Supreme Court exempted clinics in McAllen and El Paso from the admitting privileges requirement until the legal challenge has been settled. The requirement is in effect elsewhere in Texas.
Another provision, largely upheld by an otherwise unsympathetic judge, is that abortionists follow the protocol approved by the FDA for the use of the two-drug chemical abortion technique (“RU-486”).