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First lawsuit filed over abortion restrictions


The next stage in abortion rights advocates’ efforts to block implementation of strict new regulations on the procedure in Texas began on Friday, as the Center for Reproductive Rights, the American Civil Liberties Union and a group of abortion providers across the state filed a lawsuit in federal court.

“Today’s lawsuit is a united strike back against the hostile politicians who have made clear their willingness to sacrifice the constitutional rights, health and even lives of Texas women in support of their extremist ideological agenda,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement.

The lawsuit asks the court to issue a preliminary injunction to stop the state from implementing the hospital privileges and medical abortion requirements in House Bill 2, the law state legislators approved in July. Absent the injunction, the state will begin requiring physicians who perform abortions to have active hospital-admitting privileges within 30 miles of where the procedure is performed and distribute abortion-inducing medications in person starting Oct. 29. The plaintiffs in the suit represent the majority of licensed abortion providers in Texas, including the four Planned Parenthood affiliates in Texas that provide abortion services, Whole Woman’s Health and other independent abortion providers in the state.

The lawsuit does not seek to block the ban on abortions at 20 weeks of gestation, which is also slated to take effect on Oct. 29, or the requirement that abortion facilities meet the structural requirements of ambulatory surgical centers, which takes effect in September of 2014.

Advocates anticipate filing a separate lawsuit seeking an injunction on the ambulatory surgical center provision before it takes effect.

We’ve known that a lawsuit was coming since shortly after HB2 was passed during the second special session. There’s been a ton of similar lawsuits filed around the country in response to the current wave of repressive anti-abortion laws. Those lawsuits have mostly been successful, in part because the desire to restrict access to abortion on the part of so many state legislatures has led them to push the boundaries way past what is legal, usually using bogus or fraudulent “science” as their justification. But as the Observer warns us, success in court elsewhere is no guarantee of anything here.

Much depends on the tenor of the courts in which the case is filed, as well as the political leanings of the federal appellate court where the suits are inevitably referred. Progress in other state courts is no indication of how a case might proceed in Texas.

The Ninth Circuit Court of Appeals, for example, found in favor of women’s health providers in Arizona, who argued that Planned Parenthood’s eviction from the state Medicaid program violated enrollees’ right to choose their health provider. However, a similar case in Texas was heard in the Fifth Circuit Court of Appeals, where the judge found that Planned Parenthood’s eviction from a federal Medicaid program was not unconstitutional.

Indeed, the Fifth Circuit Court of Appeals, where today’s lawsuit could go, is notoriously conservative. Caitlin Borgmann, law professor at CUNY School of Law, who is not involved with today’s filing, said: “The climate is bad for abortion challenges in the Fifth Circuit.” In January 2012, for example, Fifth Circuit Judge Edith Jones upheld a mandatory ultrasound law that had been overturned by a lower court.

Just yesterday, Governor Perry appointed Jeff Brown to the Supreme Court of Texas. He is an opponent of abortion rights and has been hailed by Texas Right to Life for his ‘pro-life’ views.

Yes, the Fifth Circuit is a problem, and their recent track record argues against getting one’s hopes up. This is all likely to wind up in the lap of the Supreme Court, which is a scary thought on a whole other level. That’s why I’ve been saying that the ultimate solution to this is to win more elections. We can’t count on the courts to protect us from malevolent legislators. We have to protect ourselves from them. Trail Blazers, the Chron, BOR, and Texpatriate have more.

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  1. […] here, here, and here for the recent history. A copy of Judge Yeakel’s ruling is at the link above, […]