Federal appeals court upholds Texas’ historic pro-life HB 2

By Dave Andrusko

Texasbill5thcircuitrePro-abortion attorneys have vowed to quickly appeal a decision by a three-judge panel of the 5th U.S. Circuit Court of Appeals which upheld the bulk of Texas’s historic HB 2, the 2013 law which then-state Senator Wendy Davis famously filibustered.

Noteworthy is that pro-abortionists did not challenge the Pain-Capable Unborn Child Protection Act.

Texas Gov. Greg Abbott declared that the unanimous ruling by Judges Jennifer Walker Elrod, Catharina Haynes, and Edward C. Prado represented a “vindication of the careful deliberation by the Texas Legislature to craft a law to protect the health and safety of Texas women.”

Texas Attorney General Ken Paxton

Texas Attorney General Ken Paxton

Attorney General Ken Paxton said “Abortion practitioners should have no right to operate their businesses from sub-standard facilities and with doctors who lack admitting privileges at a hospital.” He added, “This ruling will help protect the health and well-being of Texas women. I am proud to have both supported this law in the legislature and defended it in the courts. …. HB 2 both protects the unborn and ensures Texas women are not subjected to unsafe and unhealthy conditions.”

Nancy Northup, president and CEO of the Center for Reproductive Rights, which filed the lawsuit on behalf of a group of abortion clinics and abortionists, vehemently disagreed. “Once again, women across the state of Texas face the near total elimination of safe and legal options for ending a pregnancy, and the denial of their constitutional rights,” she said.

The case, Whole Women’s Health v. Lakey, is mind-numbingly complicated, a legal tug of war that is just getting started and which operates on multiple fronts.

In their 56-page opinion, the judges upheld two key provisions of HB2. First, that abortion clinics be outfitted as “ambulatory surgical centers,” meaning being upgraded to hospital-like facilities; that applies to all abortion clinics in Texas.

Second, that abortionists have admitting privileges at a nearby hospital (30 miles) in case of emergency; that applies to all except those working in McAllen and El Paso.

Now it starts to get really complicated.

As NRL News Today reported last October, the Texas law went before the Supreme Court in a preliminary way. As veteran Supreme Court reporter Lyle Denniston explained

the Justices barred enforcement of the admitting privileges, but only as to two clinics in the Rio Grande Valley in the southwest part of the state — in McAllen and El Paso. The [Supreme] Court, in an order approved by an apparent six-to-three vote, temporarily barred Texas from enforcing the surgical facilities mandate anywhere in the state, including at any clinic that performs abortions by the use of drugs instead of surgery — so-called “medication abortions.”

The Court did not explain that order, and the Fifth Circuit, taking note of it on Tuesday, said that it could derive no guidance from what the Justices had done, in terms of the constitutionality of the two provisions at issue.

As NRL News Today also reported, a different (and divided) three-judge panel of the 5th circuit struck down a Mississippi law that is similar (admitting privileges) but different (no requirement that abortion clinics be treated as ambulatory surgical centers) on a vote of 2-1.

According to Denniston, tomorrow the Supreme Court is scheduled to hear the Mississippi case at its private conference.

The state of Texas said the requirements would further the state’s interest in protecting women’s health and safety. The appeals court panel ruled that the plaintiffs had not shown otherwise. Put another way, they had not demonstrated that the requirements imposed “an undue burden” on a “large fraction” of Texas women seeking abortions.

The panel found that 17% of women would face travel distances of 150 miles to the nearest abortion clinic, which they ruled was not a “large fraction” and thus did not constitute an undue burden.

As a result the panel lifted an injunction issued by a lower court to prevent the enforcement of these elements of HB2. It is expected to take effect in about three weeks.

But as noted above, attorneys for the plaintiffs will ask either the full 5th Circuit or the Supreme Court to put the new ruling on hold during further appeals.

Abortions will be available at eight to ten abortion clinics, most of which are clustered in the central and eastern parts of the state, according to pro-abortionists.