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Winners And Losers From Monday’s Texas Abortion Regulation Court Case

Despite the breathless headlines prematurely declaring Texas’ sweeping new abortion rules dead, it might be wise to look at the recent history of Texas abortion laws in the courts.

On Monday, a federal judge struck down one of four provisions in Texas’ new abortion law, while tweaking another, sending the law immediately to a higher court for appeal.

Despite the breathless headlines prematurely declaring Texas’ sweeping new abortion rules dead, or the triumphal tweets from the abortion industry declaring victory, it might be wise to look at the recent history of Texas abortion laws in the courts.

Brief History of Recent Texas Abortion Rulings

Generally speaking, there’s a Groundhog Day-like script here. Planned Parenthood and its allies tend to win the first round in district court, but Texas Attorney General Greg Abbott’s office just keeps winning the appeals.

Take, for example, Texas’ Informed Consent law, more commonly known as the Texas Sonogram Law, which was passed as HB 15 by the legislature and signed by Gov. Rick Perry in 2011. The law requires an abortion provider to display a sonogram of the fetus, make audible the heart auscultation of the fetus for the woman to hear, explain to her the results of each procedure, and to wait 24 hours, with several exceptions, between the sonogram and the abortion. An abortion provider must provide the opportunity, but a woman may opt out of viewing the images or hearing the heartbeat.

Judge Sam Sparks, appointed by President George H. W. Bush, initially blocked the law, citing First Amendment concerns. Four and a half months later, though, the 5th U.S. Circuit Court of Appeals rejected Judge Sparks’ reasoning and sent the case back to him for what amounted to a judicial do-over. An angry Sparks denounced the ruling he was forced to make by his superiors, saying it was “making puppets out of doctors.”

Not surprisingly, Judge Sparks had other run-ins with his judicial superiors and even received an admonition from Chief Judge Edith Jones of the 5th Circuit in another case for his “not funny… caustic, demeaning, and gratuitous” rhetoric that casts “disrespect on the judiciary.”

Then came the case of whether Texas could stop giving taxpayer dollars to providers of elective abortion. Federal District Judge Lee Yeakel, a George W. Bush appointee, ruled that Texas taxpayers were constitutionally obligated to fund Planned Parenthood as part of its Women’s Health Program.

Roughly three and a half months later, the 5th U.S. Circuit Court of Appeals vacated Yeakel’s ruling, paving the way for Texas to defund Planned Parenthood.

What happened next with the Texas Women’s Health Program is one of the more commonly misreported pieces of the story. The 5th Circuit ruled that Texas could regulate the mostly-federal funds (a $9-to-$1 federal/state match) and could keep those funds from going to abortion providers and affiliates. The Obama administration, though, rather than respecting the Court’s decision, denied Texas its due funding for the program beginning in 2013.

The State of Texas picked up the slack, to the tune of $30 million annually, fully funding its Women’s Health Program with state dollars so there would be no disruption of services for low-income women. Planned Parenthood tried and failed in court one last time before it was finally cut off from Texas taxpayer dollars at the end of 2012.

After a series of court challenges, each of Texas’ recent pro-life laws ultimately survived.

Which brings us to Texas House Bill 2 (HB 2), ruled on in district court this week by none other than Judge Lee Yeakel.

First, it is important to understand what is in HB 2. Because HB 2 was taken up during a special session of the Texas Legislature, it was an omnibus bill that included four distinct provisions.

1. Fetal Pain: 20-Week Ban

Most famously, HB 2 moved the late-term ban in Texas on abortion from 28 weeks after a woman’s last menstrual period (“LMP”) to 20 weeks post-fertilization, based on new and emerging evidence of fetal pain. Most of the usual exceptions (including protecting the health and life of the mother, and for severe fetal abnormalities) remain in place. It may seem like an unimportant quibble, but when you see “20 weeks” in the context of the new Texas abortion laws, you’re actually seeing what is considered 22 weeks in 31 states. The distinction between fertilization versus LMP is not just a semantic one. It is a shift in the way pre-born life is conceptualized. It is not an accident that Texas became the tenth state to signal that fertilization itself is the critical moment in the creation of a human life.

Verdict:  The 20-week limit did not face legal challenge in Judge Yeakel’s courtroom and goes into effect today (Tuesday, October 29, 2013). Incidentally, Texas’ new limit is still eight weeks later than France’s.

Clear winner:  Pro-lifers.

2. Ambulatory Surgical Center Regulations

HB 2 included a provision requiring abortion facilities to operate under the same standards as ambulatory surgical centers around the state. This piece of HB 2 was largely a reaction to the horrors of Kermit Gosnell’s substandard clinic. Essentially, abortion can be a dangerous procedure, and in the event of a serious threat to the health or life of the mother, an abortion facility must now meet the same requirements as facilities performing minor outpatient procedures across Texas.

Verdict:  This provision, too, did not face a challenge in Judge Yeakel’s courtroom. The ambulatory surgical center requirement goes into effect in the Fall of 2014, allowing substandard clinics ample time to comply with the new law. However, a legal challenge from Planned Parenthood is anticipated sometime next year.

Clear winner:  For now, it’s pro-lifers, but expect lawsuits in 2014 regardless of the outcome in the 5th Circuit Court of Appeals.

3. Chemical Abortions Must Follow FDA Protocols

Use of the abortion drug Mifepristone, also called Mifeprex, or RU-486, must now follow established FDA protocols, which are clear that RU-486 should only be administered in person by a qualified physician and should not be administered if:

  • It has been more than 49 days (7 weeks) since your last menstrual period began.
  • You cannot return for the next 2 visits.
  • You cannot easily get emergency medical help in the 2 weeks after you take Mifeprex.

It should be stressed that RU-486 is fundamentally different from emergency contraception known as the “morning after pill.” RU-486 doesn’t prevent pregnancy, it terminates it. Moreover, chemical abortion is distinct from — and more dangerous than — taking birth control pills. Indeed, hundreds of women have required hospitalization, more than a dozen have died, and anywhere from 5to 8 percent of RU-486 users require follow-up surgery after taking RU-486, according to the FDA.

Verdict:  Judge Yeakel left most of the new law requiring chemical abortion to follow FDA protocols intact, but he extended the 49-day deadline to 63 days for some “women with particular physical abnormalities or preexisting conditions” and “where a physician determines, in appropriate medical judgment, such a procedure is necessary for the preservation of the life or health of the mother.”

Clear winner:  Not apparent. The abortion industry isn’t happy that nearly all of the new RU-486 requirements in the bill were upheld. Pro-lifers aren’t happy that a procedure accounting for 26.1 percent of abortions in Texas could be subject to such an enormous loophole whose eligibility is ultimately determined by the very individual or organization profiting off of the procedure. But the issue is far from settled.

4. Local Hospital Admitting Privileges

Additionally, because suction curettage (also known as vacuum aspiration; don’t dare google it), accounting for 67.7 percent of Texas abortions, dilation and evacuation, accounting for 6.2 percent, and other abortion methods can and do have unforeseen complications and potentially serious negative health consequences for mothers, an abortionist is required by HB 2 to have admitting privileges at a hospital within 30 miles of the abortion facility.

Verdict:  This is the one part of HB 2 that Judge Yeakel actually blocked. He said the state lacked a rational basis for the law and that the law places an undue burden on the right of women to have abortions.

If one completely ignores the State of Texas’ rationale of the admitting privilege requirement — to protect a woman’s health if she has an abortion and complications arise — the rational basis for the law may not be self-evident. Conveniently, Judge Yeakel avoided any discussion of Texas’ rationale in his ruling, which allowed him to avoid acknowledging that a state has an obvious and compelling interest in protecting the health and welfare of its citizens.

The rational basis test is almost never applied this way in medical regulation cases — or any other area of life, for that matter. Essentially every health and business regulation outside of abortion would not stand up to the kind of scrutiny Judge Yeakel applied in this case.

As far as being an undue burden goes, the burden in this case is entirely on the abortion provider rather than the woman seeking an abortion. Moreover, following Judge Yeakel’s logic to its conclusion, almost any medical regulation of any kind designed to protect patients could be an undue burden. But somehow abortion is special.

Clear winner: For now, the abortion industry. But if recent history is any indication, Planned Parenthood and its allies should not count their chickens before they’ve hatched. Texas Attorney General Abbott has already filed an appeal in the 5th U.S. Circuit Court of Appeals.

Political Implications

The ongoing fight over HB 2 in Texas is an obvious judicial proxy battle in the gubernatorial race between Republican Attorney General Greg Abbott, who just keeps winning in court, and Democratic gubernatorial candidate and state Sen.Wendy Davis, who raised nearly a million dollars from mostly deep blue states after infamously filibustering a similar bill over the summer.

For Davis, the case is a double-edged sword. On the one side, Wendy Davis’ entire political identity is inextricably linked to her filibuster, and she is a folk hero for it in monied circles in Park Slope and San Francisco. On the other side, the more HB 2 lingers in the news, the more it will remind Texans that Wendy Davis filibustered on behalf of late-term abortion, something that could preclude her from otherwise making a serious run at turning pro-life Texas blue in 2014.

Will is a graduate of The University of Texas at Austin in Government and History. He earned his master’s degree in political science with a concentration in public policy from the University of Houston.

Follow Will on Twitter (@WILLisms).

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