Last-second sanity from Texas on abortion restriction law!

Jason Thibeault, , , ,

Well this is some heartening news.

Less than 24 hours before new abortion regulations were set to take effect in Texas, U.S. District Judge Lee Yeakel on Monday blocked implementation of one provision challenged by abortion providers and partially blocked a second provision, ruling that they could place an undue burden on women and are therefore unconstitutional.

In his opinion, Yeakel wrote that a provision of House Bill 2 that requires doctors performing abortions to have admitting privileges at a hospital within 30 miles of the abortion facility “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.”

Yeah, considering most abortion doctors have to come in from out of state, no kidding it’s an undue burden on women. But that’s how the religious want it — rights for clumps of cells who could potentially become religious, and no rights for these clumps of cells’ incubators.

Nice that something that’s clearly unconstitutional is getting slapped down as such.

Update: Well never mind then. A conservative judge just reinstated the unconstitutional crap and now over a dozen facilities will have to close.

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Last-second sanity from Texas on abortion restriction law!

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12 thoughts on “Last-second sanity from Texas on abortion restriction law!”

  3. Pteryxx
    3

    All the other abortion restrictions are still in place, including the 20-week ban and (from a separate bill) mandatory ultrasounds. However, the hospital admitting requirement would have essentially closed one-third of the clinics in Texas tomorrow.

    The other clinic-closing restriction – ambulatory surgical center requirements – will come into play (with attending lawsuits) in 2014.

    http://rhrealitycheck.org/article/2013/09/27/texas-abortion-providers-challenge-omnibus-anti-abortion-bill-in-federal-court/

  4. Jason Thibeault
    4

    Agh, dammit. I was too optimistic about this movement then. Both of those are every bit as damaging.

    The 20-week ban is absolutely horrifying to me, since many medically-necessary abortions are only determined so after that period. Never mind that an abortion is a woman’s right regardless of gestation time, since it’s her autonomy that’s being abrogated by the not-yet-viable fetus, this law will almost certainly kill women. It’s just a matter of time.

    If the ASC requirements were backed with a funded effort to upgrade existing facilities, great. Of course, they’re not. And it’s not like every abortion requires surgery — most of them are done in pill form. Why do you need an ASC present, just to be given some pills!?

  5. thascius
    5

    Presumably the 20-week ban does contain exceptions for protecting the life and health of the mother, since bans that did not include those exceptions have routinely been struck down as unconstitutional.
    That being said the whole purpose of the law was to make abortion difficult if not impossible to obtain in the state of TX without technically running afoul of the constitution. Nice to see they have failed, at least in part.

  6. Daniel M.
    6

    “The 20-week ban is absolutely horrifying to me, since many medically-necessary abortions are only determined so after that period.”

    Is your concern only with the “medically-necessary abortions” or are you against the ban against any abortion?

    Also, I think there needs to be a definition of terms when it comes to abortion. I typically take that to mean the intentional dismemberment of a human person to terminate his/her life.

    But if you have a pregnancy where the mothers life is at risk, such as the case in an ectopic pregnancy, then I would say the operation done on the tube is the mothers body and that the unintentional result of the baby potentially dying does not make on culpable. So intentions here are important.

  9. Pteryxx
    9

    Well that was a short reprieve.

    http://www.nytimes.com/2013/11/01/us/most-of-law-on-abortion-is-reinstated-in-texas.html?_r=0

    —

    thascius:

    Presumably the 20-week ban does contain exceptions for protecting the life and health of the mother, since bans that did not include those exceptions have routinely been struck down as unconstitutional.

    First off, not all abortion bans have those exceptions. If they pass they’d still get enforced as law unless and until someone mounts a legal challenge and has a judge *agree* that they’re unconstitutional.

    Second, the Texas ban only contains weakened exceptions.

    Slate: 20-Week Abortion Ban Passed In Texas Does Not Contain Exceptions For All Severe Conditions. The chief of pediatric cardiology at the University of Massachusetts Medical School explained in an article in Slate that the newly passed 20-week abortion ban in Texas does provide an exception for fetuses with severe anomalies, but only if they are “incompatible with life outside the womb,” a definition which does not include defects that might result in significant pain for the fetus or long-term vegetative states:

    For example, defects resulting in long-term vegetative states (e.g. holoprosencephaly), severe bodily deformities requiring repeated high-risk and painful procedures with an extremely low chance of success (massive congenital diaphragmatic hernias), genetic abnormalities causing death and severe disability but with a tiny chance of longer life (Patau syndrome) could theoretically not be “incompatible with life.” [Slate, 7/11/13]

    http://mediamatters.org/research/2013/07/16/media-ignore-why-women-need-access-to-abortion/194901

    And third, just because such an exception gets written into the law, doesn’t mean it will be enforced reasonably or, well, ever. That worked so well for Savita Halappanavar, or for women who end up in Catholic hospitals here in the US.

  10. Pteryxx
    10

    Pardon, here’s a better cite for the Texas exception.

    http://rhrealitycheck.org/article/2013/06/13/texas-consolidates-its-most-horrifying-anti-choice-bills-into-one-nightmare-piece-of-legislation/

    If passed in its entirety, SB 5 would:

    ban all abortions after 20 weeks, with the exception of those “necessary to avert the death or substantial and irreversible physical impairment of a major bodily function of the pregnant woman” or if a fetal anomaly “will result in the death of the infant not later than minutes to hours after birth regardless of the provision of lifesaving medical treatment.”

    So it’s not just ‘risk to a mother’s health’, it has to be severe ENOUGH risk of death or permanent damage, not just something she might survive or heal from; and again, as Savita’s case demonstrates, any level of risk can be interpreted as insufficient.

  11. Pteryxx
    11

    Analysis from RHR:

    http://rhrealitycheck.org/article/2013/11/01/decision-reinstating-texas-anti-choice-law-heavy-on-judgment-light-on-reasoning/

    The Fifth Circuit’s reputation as one of the most anti-equality, anti-abortion rights jurisdictions is well-deserved, but granting the State of Texas’ request for emergency relief was nothing short of extraordinary. To begin with, the state was required to first seek a stay of the injunction with the lower court, or at least present some evidence that doing so would have been impracticable. Never mind, said the Fifth Circuit, it will consider the state’s request anyway. […]

    Once the Fifth Circuit had replaced its judgment for the district court’s on whether there was a rational basis for the state to require hospital admitting privileges, it moved on to consider whether the requirement—which will result in 24 counties in Texas losing access to safe abortion care—is an undue burden on the right to choose abortion. Naturally, the Fifth Circuit said no, it is not. “Measured by the text” of the statutory language itself, there is no undue burden, the court found, because the statute doesn’t say its purpose is to “place a substantial obstacle in the path of a woman seeking an abortion.” The court then disposed of any sympathy for those who will not be able to access abortion care by curtly noting that “at least 100 miles” is not too far to travel for care.

    thascius, about that exception for life and health of the woman: here’s the tiny figleaf of constitutionality that remains, with respect to medical abortions since those (and the admitting privileges bit) were all the injunction addressed. [brackets mine]

    In addition, it argued that there is no need for a “vague and amorphous ‘health’ exception” since HB 2 provides a limited medical emergency exception.

    Amazingly, the Fifth Circuit didn’t just stay the injunction on these grounds, though the justices made it clear that refusing to do so in no way suggested it wouldn’t lift the injunction entirely in January. Instead, the court narrowed it because it found that the “health exception” imposed by the district court was “broader than necessary to remedy the undue burden” found by the restriction. Pending appeal, then, the Fifth Circuit stayed the injunction pertaining to medical abortions with one exception: The district court’s injunction [meaning, permission for abortion under the law] “continues to apply pending appeal with respect to a mother who is 50 to 63 days from her last menstrual period if the physician who is to perform an abortion procedure on the mother has exercised appropriate medical judgement and determined that, due to a physical abnormality or preexisting condition of the mother, a surgical abortion is not a safe and medically sound option for her.”

    Thursday’s decision doesn’t undo all of Judge Yeakel’s decision—just most of it. The sliver that remains does so likely because the judges couldn’t come up with a constitutional rationale for endorsing a pre-viability ban that contains no exception for when the patient’s life is in danger. But if the tenor and tone of the rest of the decision is any indication, I’m sure they tried to find one.

  12. Pteryxx
    12

    …and via Lynna in the Lounge:

    http://thinkprogress.org/justice/2013/11/01/2876381/need-know-severely-conservative-judge-just-ruled-birth-control/

    Nine years ago, the California Supreme Court upheld a state law similar to the Affordable Care Act’s rules requiring most employers to include birth control coverage in their employee health plans. The sole dissent in that case was Justice Janice Rogers Brown. Nearly a decade later, Brown got her revenge. … Judge Brown is now the author of a 2-1 opinion holding that religious employers can ignore the federal birth control rules. What was once a fringe view held by a lone holdout is now the law in the second most powerful court in the country. […]

    … Brown’s opinion comes just one day after Senate Republicans reignited the filibuster wars by filibustering the first of three Obama nominees to her court. Currently, the D.C. Circuit is evenly divided between Democratic and Republican active judges, but a large number of Republican judges in partial retirement allow the GOP to dominate the court. Senate Minority Whip John Cornyn wrote in a Fox News op-ed that Republicans should prevent any of Obama’s nominees from being confirmed to this court to prevent Democrats from gaining a majority. …

    … The deal that allowed Judge Brown to be confirmed also paved the way for Judge Priscilla Owen’s nomination. Yesterday evening, Judge Owen authored an opinion reinstating a Texas anti-abortion law blocked by a lower court judge. …

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