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Federal Judge Declares Some Texas Abortion Restrictions Unconstitutional

abortion-law

The suite of regulations passed earlier this year by the Texas Legislature, which had initially been the subject of a filibuster by State Senator Wendy Davis, has been declared unconstitutional by a Federal Judge:

New abortion restrictions passed by the Texas Legislature are unconstitutional and will not take effect as scheduled on Tuesday, a federal judge has ruled.

District Judge Lee Yeakel wrote Monday that the regulations violated the rights of abortion doctors to do what they think is best for their patients and would unreasonably restrict a woman’s access to abortion clinics.

Lawyers for Planned Parenthood and other abortion providers brought the lawsuit, arguing that a requirement that doctors have admitting privileges at a hospital within 30 miles of the abortion clinic would force the closure of a third of the clinics in Texas. They also complained that requiring doctors to follow the Food and Drug Administration’s original label for an abortion-inducing drug would deny women the benefit of recent advances in medical science.

The Texas attorney general’s office argued that the law protects women and the life of the fetus. Attorney General Greg Abbott was expected to file an emergency appeal of Yeakel’s order to the 5th Circuit Court of Appeals in New Orleans.

Mississippi passed a similar law last year, which a federal judge also blocked pending a trial scheduled to begin in March. Mississippi’s attorney general asked the 5th Circuit to lift the temporary injunction so the law could be enforced, but the judges have left it in place signaling they believe there is a legitimate constitutional question.

Unlike the Mississippi case, Yeakel’s order is a final decision, setting the groundwork for the 5th Circuit to review the merits of the law, not just an injunction against it.

(…)

During the trial, officials for one chain of abortion clinics testified that they’ve tried to obtain admitting privileges for their doctors at 32 hospitals, but so far only 15 accepted applications and none have announced a decision. Many hospitals with religious affiliations will not allow abortion doctors to work there, while others fear protests if they provide privileges. Many have requirements that doctors live within a certain radius of the facility, or perform a minimum number of surgeries a year that must be performed in a hospital.

More from the Austin American-Statesman:

U.S. District Judge Lee Yeakel’s opinion found that a provision requiring abortion doctors to gain admitting privileges at a nearby hospital “does not bear a rational relationship to the legitimate right of the state in preserving and promoting fetal life or a woman’s health.”

Yeakel also blocked Texas from enforcing a provision regulating the dispensing of abortion-inducing drugs.

According to testimony presented in a trial last week before Yeakel, requiring abortion doctors to get admitting privileges in a hospital within 30 miles of their clinic will force 13 of the state’s 32 abortion facilities to close Tuesday.

Doctors had difficulty meeting hospital requirements for privileges, which vary between facilities but often require doctors to live in the community, admit a minimum number of patients per year or be board certified in an area of specialization.

Many abortion doctors travel to several clinics or do not have practices designed to divert patients to the hospital, witnesses told Yeakel. The doctors also tend to be at or near retirement and lack board certification, which had not been necessary or available for their practices, abortion providers testified.

Abortion providers also complained that the law did not give them enough time. Hospitals have 170 days to rule on a request for privileges, but the law was to go into effect 90 days after the special legislative session ended in July.

In his ruling, Yeakel said the rule “places a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus and is thus an undue burden to her.”

It’s important to note at the outset that this decision does not strike down the Texas law completely. Partly this is because there several provisions of the law that were not the subject to the lawsuit challenging the law. Specifically, the Judge’s Order does not deal with what may be the most prominent provision of the law, the ban on abortions after the 20th week of pregnancy. Given that similar laws have been challenged in other states successfully, it’s somewhat surprising that the Planned Parenthood, the main Plaintiff in the case chose not to include that in the lawsuit and I’ve seen nothing explaining that particular element of litigation strategy. The 20 week limit will go into effect on Tuesday, although its entirely possible that we will see a challenge to this provision by an individual Plaintiff at some point in the future. Another provision of the law that was not at issue today requires abortion clinics to meet the same standards as “day surgery” centers. That provision doesn’t go into effect until September 2014, however, and there is some indication that this provision will be subject to challenge at some point in the near future.

It’s also worth noting that the scope of the Judge’s ruling is somewhat limited, applying only when “a physician determines, in appropriate medical judgment, such a procedure is necessary for the preservation of the life or health of the mother.” This isn’t exactly a complete rollback of the state of the law to what it was before the law was passed, but given that it puts the issue in the hands of a physicians medical judgment rather than the legislature, this may end up being a distinction without a difference.

The result today is not entirely surprising. As noted above, similar laws in other parts of the country have also been set aside by other Federal Judges on similar grounds. Most of those cases either remain at the District Court level for trial or are just starting to make their way through the relevant Circuit Courts of Appeal, though, so its unlikely that this issue will make it to the Supreme Court before the end of the current term. In the meantime, this particular case will wind its way through the 5th Circuit Court of Appeals for what is likely to be the better part of the next year. Coincidentally, this will also be the time during which the battle for the Texas’s Governor’s Race will be fought out, most likely between presumptive Republican nominee Texas Attorney General Greg Abbott and State Senator Wendy Davis. Quite obviously, it seems as though abortion in general and this law in particular will be a major issue in that case. Given that this is Texas we’re talking about, I don’t expect that this will be a winning issue for Davis, although it’s likely to garner her a lot of attention nationally.

For the moment, though, you can score this as a victory for the pro-choice side of the argument although it is a limited one given both the scope of what was being challenged and the confines of the Judge’s ruling.

Here’s the opinion:

Opinion in Planned Parenthood v. Abbott by dmataconis


 

Related Posts:

About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Ron Beasley says:

    Anything that beats back the bigoted bible thumpers is good news in my book. Too many Christians not enough lions.

    Highly-rated. Helpful or Unhelpful: Thumb up 29 Thumb down 8

  2. Stonetools says:

    So blatantly unconstitutional attempt to restrict women’s reproductive rights is considered unconstitutional. Progress.

    Highly-rated. Helpful or Unhelpful: Thumb up 26 Thumb down 3

  3. rudderpedals says:

    Perry or his office said, I don’t remember which from the Statesman article, the state would seek emergency relief from the 5th Circuit. Do you think it’ll get relief?

    Like or Dislike: Thumb up 1 Thumb down 0

  4. C. Clavin says:

    No one I know is Anti-Life.
    It’s a setback for the Anti-Choice crowd.
    Indeed the Judge ruled:

    “…places a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus and is thus an undue burden to her…”

    In other words it limits her ability to make a choice.
    It does not make her Anti-Life.

    Highly-rated. Helpful or Unhelpful: Thumb up 22 Thumb down 2

  5. C. Clavin says:

    Perry is going to appeal this.
    Meanwhile the State of Texas has killed over 167 people since 1976. (Next in rank is Virginia at around 60) Some of these we know were killed wrongfully. Some we don”t know about were killed wrongfully.
    Meanwhile 34% of children in Texas live in poverty.
    Meanwhile 25% of the population and 17% of children in Texas are un-insured.
    Meanwhile Children Gun Deaths nationwide have rose 60% in 10 years.

    Like or Dislike: Thumb up 12 Thumb down 3

  6. @rudderpedals:

    I suspect the 5th Circuit will keep the injunction in place pending appeal

    Like or Dislike: Thumb up 3 Thumb down 0

  7. C. Clavin says:

    Would Planned Parenthood have standing to challenge the 20 week rule?
    Frankly I don’t really have a problem with the 20 week rule…except…you know the zealots will then be back for 15 weeks…then 10 weeks….and so on until they have full control of a woman’s reproductive rights. Thus is the story with small-government abortion zealots.

    Like or Dislike: Thumb up 12 Thumb down 3

  8. anjin-san says:

    A woman’s right to control her own body is non-negotiable. This is good news.

    Like or Dislike: Thumb up 14 Thumb down 1

  9. mantis says:

    @C. Clavin:

    Frankly I don’t really have a problem with the 20 week rule

    I do. Late term abortions are exceptionally rare, but in the vast majority of cases they are performed to prevent the death of the woman or because the fetus is severely deformed or diagnosed with a condition that will ensure a short and painful life once born (if born alive at all). I’ve seen the latter case personally when a friend learned her unborn child had severe spina bifida. It was a heartbreaking decision for the parents to make, and they certainly didn’t need a government run by religious psychopaths interfering in their medical decisions.

    Highly-rated. Helpful or Unhelpful: Thumb up 42 Thumb down 0

  10. Ron Beasley says:

    A state that has no trouble executing should have no say in “right to life” issues. We can be fairly certain that Texas has executed innocent people. That’s murder even when the state does it.

    Highly-rated. Helpful or Unhelpful: Thumb up 22 Thumb down 0

  11. Tony W says:

    @Ron Beasley: Pro Life*

    *Until that life has been born. After that fwck ‘em.

    Highly-rated. Helpful or Unhelpful: Thumb up 16 Thumb down 0

  12. rudderpedals says:

    @Doug Mataconis: Thanks. I agree with you

    Like or Dislike: Thumb up 0 Thumb down 0

  13. anjin-san says:

    *Until that life has been born. After that fwck ‘em

    With a capital “F”…

    Like or Dislike: Thumb up 7 Thumb down 0

  14. C. Clavin says:

    Ted Cruz says the law is Constitutional… So there you have it…no point in discussing it further.
    Oh wait…didn’t Cruz just get his ass kicked by the incompetent affirmative action President?
    So why is he still talking???

    Like or Dislike: Thumb up 5 Thumb down 0

  15. bill says:

    @Stonetools: maybe women should think of their bodies as a temple instead of a farm? choice occurs several times up the road, like getting pregnant is the worst thing you can get from unprotected sex? anyhoo- take care of your mistake early and you won’t be whining about this nonsense.

    Poorly-rated. Helpful or Unhelpful: Thumb up 0 Thumb down 15

  16. bill says:

    @C. Clavin: we’re glad you’re worried about us, but we’re doing just fine without your lameness. Texas rules, you wouldn’t know it unless you lived here, but then you’d hate it anyway. we kill killers, is that so bad? and we have GUNS, that’s bad too…..

    Like or Dislike: Thumb up 0 Thumb down 12

  17. Ernieyeball says:

    @bill:…maybe women should think of their bodies as a temple instead of a farm?

    Maybe men who can not get pregnant should stop telling women how to think. In fact there is no maybe to it.
    Why don’t you butt out Bill.

    Like or Dislike: Thumb up 16 Thumb down 2

  18. Ernieyeball says:

    @bill:…we kill killers, is that so bad…

    Well, as long as most of them are guilty it’s ok to kill an innocent convict now and then ain’t it bill.

    Since 2004, further evidence in the case has led to the inescapable conclusion that Willingham did not set the fire for which he was executed.

    http://www.innocenceproject.org/Content/Cameron_Todd_Willingham_Wrongfully_Convicted_and_Executed_in_Texas.php

    Like or Dislike: Thumb up 12 Thumb down 0

  19. anjin-san says:

    @ bill

    maybe women should think of their bodies as a temple instead of a farm?

    and we have GUNS,

    You know, you sound like a wuss that can’t get any. A gun won’t make you tough, and repressive laws won’t make women submit to you. Deal with it.

    Highly-rated. Helpful or Unhelpful: Thumb up 17 Thumb down 0

  20. Jenos Idanian #13 says:

    @Ron Beasley: Too many Christians not enough lions.

    18 up-votes for killing Christians. How predictable for this crowd.

    And here’s a reason why Planned Parenthood didn’t go after the 20-week limit: “a physician determines, in appropriate medical judgment, such a procedure is necessary for the preservation of the life or health of the mother.”

    All the abortion doctor has to do is put a note in the file that the abortion is necessary for the mental health of the mother. Poof, there goes the restriction.

    Like or Dislike: Thumb up 0 Thumb down 14

  21. OzarkHillbilly says:

    @bill:

    maybe women should think of their bodies as a temple instead of a farm?

    Convenient that you seem to have forgotten that there is a man involved as well or how the price is to be paid so inordinately by women. Maybe he should have treated her body more as a temple so you wouldn’t treat it so much as a brood mare?

    @Jenos Idanian #13:

    All the abortion doctor has to do is put a note in the file that the abortion is necessary for the mental health of the mother. Poof, there goes the restriction.

    And here comes jenos to so eloquently prove my point. Nice to know jenos that the mental health of the mother is only incidental to the whole ‘family’ thing.

    Like or Dislike: Thumb up 10 Thumb down 0

  22. C. Clavin says:

    @C. Clavin: we’re glad you’re worried about us, but we’re doing just fine without your lameness. Texas rules, you wouldn’t know it unless you lived here, but then you’d hate it anyway. we kill killers, is that so bad? and we have GUNS, that’s bad too…..

    I have lived in Texas, bill. So that’s just one more thing you are wrong about .
    As for killing killers… You also kill innocent men.
    So much for the whole ” every life is precious” nonsense .
    Why are you and Ted Cruz still talking?
    You’ve been weighed , measured, and found to be way short of a full deck.

    Like or Dislike: Thumb up 4 Thumb down 0

  23. OzarkHillbilly says:

    @bill:

    Texas rules, you wouldn’t know it unless you lived here, but then you’d hate it anyway.

    I have lived there. Born there, Been back from time to time. Hasn’t gotten any better. Still too many damn Texans there.

    we kill killers, is that so bad?

    Seeing as you ain’t so picky as to whether they are actually killers or not? Yeah, it is so bad.

    and we have GUNS, that’s bad too…..

    You know what? This may come as a shock to you, but we have guns too.

    Like or Dislike: Thumb up 8 Thumb down 0

  24. Rob in CT says:

    @mantis:

    This, all of it.

    I have close friends who faced down a similar situation (though they were having twins and the other fetus was fine). They didn’t choose to abort. But that’s a choice I very much think they needed to be able to make without the State of Connecticut’s involvement. Especially since if there had been any signs of distress from the a-ok fetus, the doctors may well have wanted to do something that might have qualified as “abortion” amongst certain folks.

    [note, by the way, that Mr. wannabe Theocrat (Santorum)'s wife basically had a late-term abortion. They didn't call it that, of course. IOKIYAR]

    Like or Dislike: Thumb up 8 Thumb down 0

  25. george says:

    @Jenos Idanian #13:

    And here’s a reason why Planned Parenthood didn’t go after the 20-week limit: “a physician determines, in appropriate medical judgment, such a procedure is necessary for the preservation of the life or health of the mother.”

    I gather that you consider an abortion to save the life or health of the mother is a bad idea.

    I wonder how much of that conclusion comes from the security of knowing that you’re never going to be in that situation yourself. Nothing like something being someone else’s problem to bring out righteousness.

    Like or Dislike: Thumb up 7 Thumb down 0

  26. mattbernius says:

    Doug wrote: [T]he Judge’s Order does not deal with what may be the most prominent provision of the law, the ban on abortions after the 20th week of pregnancy. Given that similar laws have been challenged in other states successfully, it’s somewhat surprising that the Planned Parenthood, the main Plaintiff in the case chose not to include that in the lawsuit and I’ve seen nothing explaining that particular element of litigation strategy.

    I suspect the decision to not litigate this aspect of the law might have had more to do with timing than anything else.

    The plantiffs appear to have narrowly focus on the provisions of the law that would have shuttered clinics. I suspect that the assumption was that if the law had gone into effect, and the clinics closed, even if the law had later been repealed, the damage would have already been accomplished.

    Hence the legal team went after the most detrimental aspects of the law first (not to mention the ones where they had the strongest support from all of the major medical groups in the state).

    Like or Dislike: Thumb up 2 Thumb down 0

  27. Jenos Idanian #13 says:

    @george: I gather that you consider an abortion to save the life or health of the mother is a bad idea.

    You gather incorrectly. I just have little patience for the dishonest arguments of the militant pro-choicers.

    For example, “life of the mother.” She’s choosing to not be a mother, so it should be “life of the woman.” And as I noted, getting a doctor who’s planning on performing an abortion to sign off on a slip saying that it’s necessary “for the mental health of the mother” is a big ol’ nothing.

    What I suspect led you to that conclusion is listening to the side that says that unless you oppose any and all restrictions of any kind, you’re a fascist womyn-hater who is having a love affair with the fetus and wants all womyn barefoot and pregnant. Which is a total crock.

    Like or Dislike: Thumb up 0 Thumb down 4

  28. Ernieyeball says:

    Nothing like something being someone else’s problem to bring out righteousness.

    POOF! There goes his 13th Nervous Breakdown!

    (apologies to Mick and the boys)

    Like or Dislike: Thumb up 2 Thumb down 0

  29. anjin-san says:

    @ Jenos

    For example, “life of the mother.” She’s choosing to not be a mother, so it should be “life of the woman.”

    Considering how often you whine about “semantics” this seems somewhat disengenious. But then you are driven by the expedience of the moment, not any core beliefs or values.

    Like or Dislike: Thumb up 6 Thumb down 0

  30. Ernieyeball says:

    @Zippy #13: For example, “life of the mother.” She’s choosing to not be a mother, so it should be “life of the woman.”

    Women who have children can still get a safe, legal abortion in some places in this country despite the efforts of you and your ilk so “life of the mother” is appropriate.

    Like or Dislike: Thumb up 6 Thumb down 0

  31. anjin-san says:

    I just have little patience for the dishonest arguments

    Understandable. Your patience is reserved for YOUR dishonest arguments.

    Like or Dislike: Thumb up 5 Thumb down 0

  32. C. Clavin says:

    “…unless you oppose any and all restrictions of any kind, you’re a fascist womyn-hater who is having a love affair with the fetus and wants all womyn barefoot and pregnant. Which is a total crock…”

    Well Zippy #13…you are right that is a crock. You are positioning yourself against a hyperbole driven straw-man. It’s a total mis-characterization. A lie. Like all of your arguments tend to be.
    Which makes me wonder….what is it about you…that no matter how many times (actually on a daily basis) you are proven to be wrong, stretching the truth, or outright lying…you still come back with the same obsessively held beliefs? Why is it, do you think, that you are incapable of learning? Do you ever ask yourself that? Has it ever entered your mind that you may have a serious problem?

    Like or Dislike: Thumb up 5 Thumb down 0

  33. mantis says:

    @Jenos Idanian #13:

    And as I noted, getting a doctor who’s planning on performing an abortion to sign off on a slip saying that it’s necessary “for the mental health of the mother” is a big ol’ nothing

    Have you ever met a doctor?

    Like or Dislike: Thumb up 3 Thumb down 0

  34. bill says:

    @C. Clavin: guess you hated it then? we don’t miss you anyway, plenty of able bodied hard workers down here. and back to the dreaded “choice”- women make bad choices and then need to take care of them asap, i never said i was totally against abortion but really, 20+ weeks later and you need more time to “think”…..i think the thought process is a bit warped by then but whatever.
    and i’m all about the guys paying for it too, they don’t “get off” (nice double entendre there) scott free either- hence the dna biz boom. so really, it’s all or nothing with you abortion rights folks!

    Like or Dislike: Thumb up 0 Thumb down 2

  35. Jenos Idanian #13 says:

    @mantis: Apparently you’re even denser than normal. A doctor who performs abortions most likely already believes that the woman’s choice is her right entirely, and depriving her of that right would be harmful to her mental and emotional health. So no big deal.

    Besides, these are the same doctors that, according to Obama, every year perform unnecessary tonsillectomies and amputations just for the money. So signing off on a form is no big deal.

    Like or Dislike: Thumb up 0 Thumb down 0

  36. mantis says:

    @Jenos Idanian #13:

    A doctor who performs abortions most likely already believes that the woman’s choice is her right entirely, and depriving her of that right would be harmful to her mental and emotional health. So no big deal.

    So the answer is you don’t know jack shit about doctors. Thanks for clarifying.

    Like or Dislike: Thumb up 0 Thumb down 0

  37. Jenos Idanian #13 says:

    @mantis: So, cockroach, a doctor would perform an abortion that he or she did believed would NOT be beneficial to his patient’s physical or mental health? How effed in the head are you?

    Oh, yeah, you’re an Obamoid, and you believed him when he talked about doing unnecessary amputations just for a buck. Compared to hacking off a foot, performing an abortion’s nothing.

    Like or Dislike: Thumb up 0 Thumb down 0

  38. bill says:

    well,looks like not much will change anyway.

    http://news.yahoo.com/court-reinstates-most-texas-abortion-rules-000638572.html

    Like or Dislike: Thumb up 0 Thumb down 0