Supreme Court blocks HB2

The US Supreme Court has ruled in emergency fashion that invaluable components of HB2, the omnibus anti-abortion bill that Wendy Davis famously filibustered, may be stayed until appeal. Specifically, a provision that required all clinics to adhere to the standards of ambulatory surgical centers was put on hold, as was another in part. The provision that requires abortion doctors to have admitting privileges at a nearby hospital was set aside specifically for clinics in McAllen and El Paso, though not the rest of the State.

The ruling was 6-3, with Chief Justice John Roberts and Justice Anthony Kennedy joining the four liberals. The three arch-conservatives, meanwhile, dissented from the order. As most will remember, a Federal Judge struck down these provisions a couple months back, but a Federal Appeals Court lifted the stay while it considered the appeal. The Supreme Court today merely reapplied the stay of the Federal District Judge in Austin who originally ruled the law unconstitutional, Lee Yeakel. Last year, Yeakel also ruled other provisions of the law unconstitutional, in a suit that similarly was reversed by the Appeals Court, although the Supreme Court pointedly chose not to reapply the stay in that case.

The implications here are, in a word, huge. As noted above, the Court has decidedly not stayed previous decisions, often 5-4 and along party lines. The two moderate conservatives on the Court, Roberts and Kennedy, have for some reason decided to shift views on the topic. Perhaps it is because the full effect of the case would reduce the number of clinics in Texas to just 5 or 6, a horrifying lower number per capita than other states included Mississippi, which has only one. Whatever the rationale, the implications of this decision are rather significant. For the first time, I am even cautiously optimistic that the law could be struck down by the Supreme Court upon final appeal (which is still likely years off).

Additionally, this development will likely take everyone’s mind off of that silly Wendy Davis ad, which has been eating up a significant portion of the 24/7 news cycle recently. As unfavorable to Davis as talking about abortion might be, I would still reckon it is leaps and bounds above the fallout over her wheelchair ad. Anyways, that’s my two-cents.

As for the clinics closed by this law, they can now re-open. Sagacious followers of the press will be familiar with stories of clinics closing overnight and cancelling dozens of appointments along with it. Those clinics can now re-open and, hopefully, women can continue receiving the healthcare options they need.

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What’s next for HB2?

The Texas Tribune reported, last Friday, that HB2, the omnibus anti-abortion bill famously filibustered by State Senator Wendy Davis (D-Tarrant County) (who is now the Democratic gubernatorial candidate), has been struck down once more by a Federal Judge. This is somewhat old news, so I want to deal with a few pieces of the puzzle that have not been adequately covered by the mainstream press.

First, this news should ideally sound like deja vu if you have been paying attention. About 10 months ago, the same Federal Judge out of Austin –Judge Lee Yeakel (a George W. Bush nominee)– struck down other parts of the law. That ruling has since been reversed by the Fifth Circuit Court of Appeals, otherwise known as the Federal Appellate Court with jurisdiction over Texas. The most recent action in that case was a request by the law’s opponents for the entire Court, as opposed to a three-Judge panel, to consider the case. This was filed back in April, and is the most recent action taken on the case.

Accordingly, one may be confused as to how two concurrent lawsuits can be going forth on the same law. I’m glad you asked! The law was divided up into four separate provisions. The first and second provisions require inducing drugs to be taken at a clinic and require abortion doctors to have admitting privileges at a nearby hospital, respectively. They took effect on September 1st of last year, and were challenged in the lawsuit from last year. The third provision, which would not have gone into effect until tomorrow, requires all clinics to adhere to the standards of ambulatory surgical centers, universally considered among pertinent professionals to be a wholly unnecessary regulation designed to drive clinics out of business. And, by all counts, it would have been.

The ASC requirement was the one challenged –and ruled unconstitutional– in the most recent court case. The fourth provision, which went into effect last year and bans abortion past the twentieth week, was never challenged.

Now, as long as we’re being realistic, it should be noted that this ruling will likely be stayed by the Fifth Circuit, much the way the previous one was. At some point in the future, the Fifth Circuit will fully overturn it. A little further down the line from that, the Supreme Court will step in, and likely consolidate the two cases, then make a ruling. It’s really anyone’s guess at that point.

As I have stated in the past, if the Supreme Court were to truly examine all the pertinent precedent in this case, the law would indubitably be going down in flames. But that simply is not a given anymore.

HB2 trial goes to Appeals Court

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:

Click here to read more!

HB2 ruling stayed

The Texas Tribune reports that the Federal District Court opinion ruled unconstitutional on Monday has been stayed upon appeal by the Federal Appeals Court (5th Circuit). A three judge panel made up of Judges Priscilla Owens, Jennifer Elrod and Catharina Haynes (all appointees of George W. Bush) unanimously decided that the Court will hear arguments on the constitutionality of the bill in January. Until that time, however, a stay would be put on the District Court’s opinion, meaning those pertinent parts of HB2 would go into effect.

In granting the stay, the panel concluded that the provision fully overturned by the District Court –requiring abortion doctors to have admitting privileges at a nearby hospital– had a good chance of being reinstated on the merits of its constitutionality by the Appeals Court. In fact, the entire order read like a final judgment upholding the constitutionality of the law.

From here, opponents of the law are seeking two separate resolutions. First, they are hoping to see the law struck down as unconstitutional. Second, they are trying to see that, in mean time, the law does not go into effect. The paths for these two resolutions diverge a little bit at this point.

Click here to find out what we should do now and the implications this ruling is having already!

Trial over HB2 begins

The Texas Tribune reports that the long-awaited trial over HB2, the omnibus anti-abortion legislation, had begun. The lawsuit, which was filed last month by Planned Parenthood & friends, is being heard in the Austin division of US District Court for the Western District of Texas. Specifically, the suit is being heard by Judge Lee Yeakel, a Bush appointee who most famously blocked a bill in 2011 to defund Planned Parenthood.

The astute will remember that this bill, the same one Wendy Davis so famously filibustered for nearly 13 hours, is comprised of four distinct parts. First, the bill bans elective abortions after 20 weeks. Despite being referred to as the flagship component of the bill, this segment is actually somewhat non-controversial and was not challenged in the lawsuit. Further, the most far reaching provision, that clinics adhere to the standards of ambulatory surgical centers, will not go into effect for about another year. Accordingly, it will not be challenged as well.

Instead, the remaining two provisions are being challenged. These are a requirement for abortion doctors to have admitting rights at a nearby hospital and the requirement for the inducing drug (a pill) to be administered by the doctor her or himself, respectively.

Click here to read more about recent developments in the trial!