By Dave Andrusko
As widely, but not universally expected, the United States Supreme Court agreed today to take up a lawsuit brought by a coalition of abortion providers that challenges two provisions of H.B. 2, an omnibus 2013 Texas law.
However reluctant justices may (or may not) have been to wade into the abortion controversy, it made sense for the High Court to hear Whole Woman’s Health v. Cole. Abortion is an important issue and lower courts have disagreed over the requirement that abortionists have admitting privileges at a nearby hospital for situations of medical emergencies. HB2 also requires that abortion clinics meet the same building standards as ambulatory surgical centers.
It is noteworthy what was never challenged: the Pain-Capable Unborn Child Protection Act. Also not before the justices is a provision that requires the abortionist to 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.
HB2 is best known to outsiders as the bill pro-abortion state Sen. Wendy Davis filibustered in 2013. Although pro-life Gov. Rick Perry quickly called a special session and the bill was signed into law, Davis used the enormous publicity as a springboard to what turned out to be a disastrous campaign to succeed Perry.
As the Houston Chronicle’s Brian M. Rosenthal wrote Friday, U.S. District Judge Lee Yeakel of Austin “has twice struck down parts of the law, but both of those decisions have been reversed by a New Orleans-based federal appeals court [the 5th U.S. Circuit Court of Appeals]. The law took effect temporarily before being put on hold by the U.S. Supreme Court.”
By contrast, under Mississippi’s H.B. 1390, passed in 2012, abortionists are required to have admitting privileges at a local hospital, but, unlike Texas’s H.B. 2, the law does not require that abortion clinics meet the standards of ambulatory surgical centers.
At the eleventh hour Judge Daniel P. Jordan temporarily blocked Mississippi from enforcing the law and extended the restraining order in 2013. On July 29, 2014, a different three-judge panel of the 5th U.S. Circuit Court of Appeals blocked the state from enforcing the law. The panel split 2-1.
Worth noting is how blatantly hostile some stories were to the Texas law while others (such as the initial CNN story I read) were much more down the middle.
For example, USA Today wrote about how the “tough new restrictions were …”forcing doctors to have admitting privileges at nearby hospitals and requiring clinics to meet standards for outpatient surgery centers” and “ threaten….”
States were “emboldened” by the 2007 decision upholding the ban on the grisly partial-birth abortion technique. And if that weren’t enough, we’re told by Richard Wolf, Justice Anthony Kennedy “joined the plurality that concocted the undue burden standard in 1992.”
A decision is expected next year, probably in June, or whatever is the end point of the High Court’s term, right in the middle of the presidential contest. Wolf also decreed “a renewed focus could help Democrats next year.”
Pro-lifers say that “renewed focus” will help us remind the public just how radically out of the mainstream Hillary Clinton, the likely Democratic nominee, is on abortion.