Federal Judge Declares Some Texas Abortion Restrictions Unconstitutional
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.
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: