Layers of Courts for State Abortion Law


By Tanya Silverman

Photo courtesy of Wikipedia.

Filing from Texas, abortion providers joined pro-choice groups, Planned Parenthood, the American Civil Liberties Union, and Center for Reproductive Rights, making an emergency request to the US Supreme Court to put controversial provisions on their state’s abortion-restricting law on hold.

The Texas law in question, also known as House Bill 2, took effect on Friday, and requires abortion-providing doctors to gain admitting privileges at hospitals within 30 miles of their clinics.

Additionally, the law bans abortion after 20 weeks of pregnancy (under the argument that a fetus can feel pain at that at that stage) and puts stricter restrictions and FDA standards on pills that induce abortions.

Last Monday, however, US District Judge Lee Yeakel declared several of the law’s provisions unconstitutional, deciding that they violate abortion doctors’ rights and damage patients’ clinical access. While Yeakel did not touch on the 20-week restriction, he declared the implementation of FDA regulations on abortion drugs as unnecessary for protecting patients’ health. Many pro-choice groups and advocates thought Yeakel’s counter measure significant – at least until late last Thursday, when a panel of judges at the Fifth US Circuit Court of Appeals dismissed the Judge Yeakel’s ruling, allowing the whole statute of House Bill 2 to go into law the following day.

Clinics that offer abortion, along with the women who entered these facilities, certainly felt the law’s immediate effect on Friday as clinics were forced to turn down patients on account of the hospital-approval standard.

The 30-mile admittance provision of Texas’s House Bill 2 is being highly disputed by Planned Parenthood et al., who argue its effect forces one third of the state’s clinics to stop providing abortion services. The pro-choice groups also estimate that the provision will block 20,000 Texan women from having abortions annually.

In contrast, a common pro-life rebuttal claims that the law works to ensure that abortion clinics are subject to higher safety standards than they had been previously.

Even before these supporting pro-choice groups took quick action this week to send an appeal to Justice Antonin Scalia’s desk, analysts last week were predicting that House Bill 2 would end up in the Supreme Court. After all, the conservative Fifth Circuit’s order for Texas is temporary, pro-choice representatives are challenging the House Bill 2 in court, and these arguments are scheduled to be handled in January. Elsewhere, the states of North Dakota, Wisconsin, Alabama, and Mississippi have passed similar laws that require clinics to seek hospital admittance privileges – but Texas is the only one that has implemented this restriction while it had been challenged by court.

“To allow this kind of law to go into effect during a court case is a very different approach to what we’ve been seeing in other court cases on the same subject,” Elizbaeth Nash from New York’s reproductive health research center, the Guttmacher Institute, told USA Today.

Joe Pojman, a pro-life exectuive director at Texas Alliance for Life pointed out that the Supreme Court does allow states to handle abortion regulation in terms of what they find necessary to ensure safe practice – reasoning that’s what his state is doing.

Such statewide abortion restrictions, however, were challenged by the Supreme Court when, on Monday, the justices dismissed an appeal from Oklahoma to effectively ban abortion-inducing drugs. Although the Texas law includes similar restrictions against abortion drugs – and Judge Yeakel opposed such restrictions – the prospective pro-choice plaintiffs did not include this in their emergency appeal file.

As for the 20-week restriction, the section was not challenged by Judge Yeakel or presented by pro-choice groups – even though its principle does go against the federal Roe v. Wade standard of restricting abortions after 24 weeks. In effect, the 30-mile hospital admittance restriction becomes the center of judiciary controversy in attempting to advance the law to the Supreme Court’s review.

So far, Supreme Court Justice Antonin Scalia has told Texas state officials to file a response by next Tuesday, before anything goes forth. Texas officials will likely contend that this hospital-admittance restriction is necessary in preserving women’s health. The state’s Attorney General, Greg Abbott, asked the Fifth Circuit Court of Appeals to appeal Yeakel’s decision, and a spokeswoman has more recently commented that his office still stands by defending this law.

Regarding Texas’s abortion laws, whatever is decided by the Supreme Court, or at the state level, will surely affect women seeking abortion, and will lead to further disputes between pro-life and pro-choice interests. Though Roe v. Wade may have been decided in 1973, the fight between pro-choice advocates and the Texas legislature over the legal rights and restrictions designating where and when abortions can occur represents the new battleground where the issue is being fought today.