The Corner

The Texas Abortion Decision

The first legal battle over Texas’s omnibus abortion bill has just been wrapped up, with results that that give Texas pro-choice activists a partial victory, though only a short-term one. A district judge has blocked part of the bill, but pro-lifers aren’t giving up — the war is far from over.

The law in question seeks to implement a collection of pro-life policy goals: It bans abortions after 20 weeks unless the fetus is nonviable or the mother’s health is at risk, requires that abortions take place in clinics that meet ambulatory surgical centers’ standards, and requires that abortion providers have admitting privileges at a hospital within 30 miles of the clinic where they work. It also mandates that the administration of drugs to perform medical abortions follows the FDA protocol, which requires three visits to the clinic to take the medication necessary to terminate and then expel the fetus.

The fight over this law drew national attention this summer when Wendy Davis, a Democratic state senator, filibustered the bill for 13 hours. Though the legislation eventually passed, her filibuster temporarily blocked it in the upper chamber and made her a national hero for pro-choice activists, giving her a platform to enter the 2014 gubernatorial race.

U.S. district judge Lee Yeakel, a George W. Bush appointee, issued injunctions against the two parts of the omnibus bill that came before his court: the provision requiring that abortion providers have admitting privileges at a relatively nearby hospital, and the requirement that medical abortions follow FDA protocols even if the life of the mother is in jeopardy (medical abortions must still follow FDA protocols in Texas when the mother’s life isn’t in danger). 

“I think it’s a shame that we have activist judges who are trying to legislate from their bench instead of letting Texas decide what’s best for us,” says Representative Jonathan Stickland, a member of the state house who was a vocal advocate for the pro-life bill. He adds that he expects a victory on appeal.

Attorney General Greg Abbott, one of the defendants in the case, has said he will try to take the fight over this law to the Supreme Court; he filed a notice to appeal the decision shortly after it was released. The case will first go to the Fifth Circuit Court of Appeals, where pro-life activists are optimistic about the legislation’s prospects – the court tends to lean conservative in its decisions. 

“If this goes to the Fifth Circuit, we’re pleased,” says Cathie Adams, president of Texas Eagle Forum, a state branch of the national social-conservative group of the same name. Her group lobbied for the law’s passage and filed an amicus brief in its favor. “We have confidence that the Fifth Circuit judges are more into interpreting not just the law but the Constitution,” she continues, “and I think that that bodes very well for our omnibus bill.”

The provision banning most abortions after 20 weeks will still go into effect this week. Pro-choice advocates haven’t challenged the 20-week ban in court and aren’t expected to do so. And this lawsuit didn’t challenge the requirement that abortions be performed in hospitals or ambulatory surgical centers, as that regulation doesn’t kick in until next year (pro-choicers have indicated that they’ll challenge it closer to its implementation date).

Texas lieutenant governor David Dewhurst shaply criticized the decision, saying, “I am saddened by the court’s decision to overturn certain elements of HB2 which were written to protect the health of Texas women. It is disturbing to know that the abortion industry is celebrating a so-called victory that actually reduces the standard of care for the women from whom they profit.”

Senator Ted Cruz, the former solicitor general of the Lone Star State, made the following statement: “Texas passed commonsense legislation to protect the health of women and their unborn children. This law is constitutional and consistent with U.S. Supreme Court precedent protecting the life and health of the mother and child. I hope the Fifth Circuit Court of Appeals will uphold Texas’s reasonable law.”

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