Today, a three-Judge panel on the 5th Circuit Court of Appeals will hear oral arguments over the constitutionality of HB2, the omnibus anti-abortion bill most famous for Wendy Davis’ filibuster against it. In October, a Federal Judge in Austin (Lee Yeakel) declared one provision of the law to be unconstitutional. The State immediately appealed the ruling, which was stayed by the Federal Appeals Court. The provision in question, requiring abortion doctors to have admitting privileges at nearby hospitals, went into effect and allegedly caused the closure of a plethora of clinics.
Not included in these proceedings will be the constitutionality of the law’s most onerous restriction, requiring clinics to adhere to the standards of ambulatory surgical centers. That provision does not go into effect until October 1st of this year. The provision requiring women to take an inducing drug at the clinic was found to be largely constitutional while a fourth provision, prohibiting abortion after 20 weeks, was not challenged in the lawsuit.
Most analysts believe that this case will eventually make its way to the Supreme Court, and could end up being a true battle royale for the abortion issues. While I cannot believe the Supreme Court would actually have the naive temerity to overturn Roe, it could very easily neuter it in an backhanded way that would harm countless women. All this would happen in June 2015, after the Fifth Circuit makes a final ruling in the early summer. HB2 proponents are somewhat confident they will prevail at the Fifth Circuit, for reasons I will delineate below:
The Houston Chronicle noted yesterday that the composition of this three-Judge panel is Edith Jones, Jennifer Elrod and Catharine Haynes. The former two Judge were both George W. Bush nominee, whereas Judge Jones was Reagan nominee who was once seriously considered by Bush for a position on the US Supreme Court.
Elrod and Haynes both signed an order last year predicting proponents of the law would prevail (thus granting the stay), whereas Jones is known for her untethered conservatism, especially on social issues. As Patti Hart notes in her Chronicle article, Judge Jones recently lamented the existence of Roe, writing: “One may fervently hope that the Court will someday acknowledge such developments and re-evaluate Roe and Casey accordingly.”
One thing is for certain, this issue is not going away any time soon. Elections have consequences.
Burnt Orange Report has more.