The Texas Tribune reports that HB2, the omnibus anti-abortion bill passed last year and famously filibustered by Wendy Davis, has been upheld as constitutional by the Fifth Circuit, a Federal Appeals Court with jurisdiction over Texas. A three-judge panel, consisting of two appointees of George W. Bush and one of Ronald Reagan, unanimously endorsed the constitutionality of the bill. Among the provisions challenged in this case were one requiring the abortion doctors to receive admitting privileges at a nearby hospital and another requiring inducing drugs to be taken in person the day before. Both requirements have been deemed as excessive by pertinent doctoral societies and otherwise repudiated by medical professionals as simply opaque ways of closing abortion clinic. Since the passage of this law, a plethora of clinics west and south of San Antonio have shut their doors.
Not challenged in this ongoing lawsuit is the 20 week ban on abortion. A fourth provision, arguably the most controversial, that requires clinics to adhere to the same standards as ambulatory surgical centers does not go into effect until later this year and thus was not challenged. Back in October, a Federal Judge (another Bush appointee) in Austin ruled components of the law unconstitutional. However, a few days later, the Fifth Circuit stayed this ruling.
For opponents of HB2, there is little dispute over the need for an appeal. However, at this point, they are left with two options. First, they could request en banc review form the entire circuit of the Federal Appeals Court. On the Fifth Circuit, they are 17 slots, though only 14 of them are occupied. Of those fourteen judges, 10 were appointed by Republican Presidents and 4 by Democratic Presidents. Accordingly, even if Obama got all his outstanding n0minees confirmed, the Republicans would still maintain a huge advantage on the court (Note: The Obama administration has been notoriously inept in neglecting the courts. Of the three vacancies, the administration has been too lazy to nominate more than one replacement candidate).
Either way, the case now looks likely headed to the United States Supreme Court, which will likely take it as part of the biggest overview of abortion laws in over a generation. At that point, I suppose anything could be bound to happen.
All in all, however, this should not have come as a shock to anyone. Given the asinine questions, such as broad references to highways, that occurred when the Federal Appeals Court heard this case back in January, this was not at all unexpected. Still it should be a gentle reminder that, not only do elections have consequences, but the laziness of a Presidential administration vis-a-vis judicial appointments do as well.