Court of Appeals upholds HB 2, enforces abortion clinic regulations

All but seven or eight abortion clinics throughout Texas were forced to close Friday (Oct. 3) due to non-compliance with a controversial 2013 Texas law regulating the abortion industry. The U.S. Court of Appeals 5th Circuit ruled Thursday House Bill 2 (HB 2) can be fully implemented while a lawsuit against two of its provisions is pending in appeals court.

Pro-life advocates praised the ruling saying HB 2 raises the standard of operations for abortion providers and will be upheld upon appeal. But abortion proponents claim the law creates an untenable concoction of required standards most abortion providers cannot meet, creating an “undue burden” for women seeking abortions.

“This decision is a vindication of the careful deliberation by the Texas Legislature to craft a law to protect the health and safety of Texas women,” said Lauren Bean, Texas Attorney General’s Office spokeswoman, in a press release.

But in a written response to the decision, lead plaintiff Whole Women’s Health called HB 2 politically motivated and “one of the most restrictive and harmful laws against women in the country.”

Abortion advocates called for a rally at the Texas State capitol Friday, encouraging Texas women to “fight back” and defeat pro-life candidates in the Nov. 4 general election.

Wendy Davis, the democratic gubernatorial candidate who rose to fame following her 11-hour filibuster of the senate version of HB 2, Tweeted a response to the ruling.

“Women should be able to make personal decisions without intrusion of pols like Greg Abbott, who’d ban abortion even for rape and incest.”

The 5th Circuit three-judge panel ruled the State had “made a strong showing of likelihood of success on the merits of its appeal,” indicating the law will be upheld when the full case goes before the same court later this year. The decision overturns Federal Judge Lee Yeakel’s injunction of two provisions of the law.

Although the 5th Circuit Court has a conservative reputation, Kyleen Wright, executive director of Texans for Life, was cautiously optimistic of a ruling upholding all provisions of HB 2. She told the TEXAN the current decision bodes well for the State on appeals, but there are other factors to consider.

“Who we draw for the panel to hear the appeal could be an issue, though. In this case, [Judge Stephan] Higginson, the Obama appointee, did write a dissenting opinion. There are four Obama appointees on the 5th Circuit so a lot rides on which three we draw,” Wright said.

This is not the first time the 5th Circuit Court has overturned Yeakel’s ruling on HB 2. In January an all-female, three-judge panel overturned his injunction against the HB 2 mandates establishing admitting privileges and standards for performing medically induced abortions.

But a second lawsuit filed by abortion clinic operators and doctors in April again challenged the constitutionality of the law. On Aug. 29, just two days before the mandate requiring all abortion clinics upgrade their operating standards to that of an ambulatory surgical center (ASC) went into effect, Yeakel ruled the measure unconstitutional and halted its enforcement.

Yeakel concluded the ASC regulations were not necessary when performing non-surgical, or medically induced, abortions and were therefore arbitrary. And had the ASC standards gone into effect as scheduled on Sept. 1, all but seven or eight clinics would have closed for non-compliance. That, Yeakel stated, created an “undue burden.”

A term cited in the 1992 lawsuit Planned Parent vs. Casey, “undue burden” is the as-yet qualified standard by which judges nationwide determine whether or not a woman’s access to an abortion has been infringed. The term, though defined in some rulings, remains subjective and open to broad interpretation according to pro-life advocates.

But plaintiffs contend the combination of ACS requirements and admitting privileges played a key role in the potential closure of abortion clinics in two remote locations­—El Paso and McAllen.

The McAllen clinic closed in March when its attending physician could not acquire admitting privileges to a nearby hospital. The El Paso provider met that standard but would be forced to shutter if the ASC requirement is enforced. Yeakel ruled the combination of the two mandates—specifically in the two cities—significantly diminished women’s access to abortion in West Texas and the Rio Grande Valley and prohibited enforcement of the admitting privileges mandate in only those cities.

But the appeals court disagreed, reiterating its January decision overturning Yeakel’s previous injunction of the admitting privileges provision.

The court also overruled Yeakel’s state-wide ACS injunction with the exception of one element. While the case is appealed, the El Paso clinic will be held to the ACS operational standards but not be required to comply with the physical operating standards. Despite the small reprieve, abortion proponents said the El Paso clinic, the lone abortion facility west of San Antonio, will have to close.

Abortion advocates said the distance women will have to drive for an abortion in Texas essentially restricts access to the procedure. But Whole Women’s Health operates a clinic just across the Texas border in Los Cruses, NM—a fact the court would not take into consideration as it was not applicable to the Texas law.

Pro-life advocates disagree. Although the closure of far-flung clinics may make access to an abortion clinic more difficult, it does not make it impossible. And the court agreed. In its 38-page ruling, the appeals court stated there is a distinction to be made between what constitutes a restriction and an “undue burden.”

Although protesting the closing of non-compliant clinics in El Paso and McAllen, Planned Parenthood has applied to operate two new clinics in San Antonio and Dallas—locations where independent abortion clinics currently operate.

Asked what she thought of the decision to locate in high-volume metropolitan areas instead of West Texas and the Rio Grande, Valley Wright said, “Vintage Planned Parenthood. Like the bad boyfriend who promises one thing but does another, Planned Parenthood constantly professes its devotion to caring for women, especially low-income women, while actually always putting profits first.”

TEXAN Correspondent
Bonnie Pritchett
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