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.
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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:
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I apologize for the lack of activity recently, a few things (Yom Kippur, a paper, etc) have kept me somewhat busy.
The Chronicle is reporting that Chief Justice Edith Jones of the 5th Circuit will be leaving her position as Chief, though remaining on the court. She will be replaced by Justice Carl Stewart, a Clinton nominee.
In the light of some of the 5th Circuit’s recent opinions, I hope that the new Chief Justice will not be a Co-Magnon and not a rubber stamp for the GOP. Maybe it is the newfound Bostonite in me, but I am cautiously opportunistic.