Two years after the U.S. Supreme Court overturned major provisions of Texas’ omnibus House Bill 2, abortion rights groups want to use that decision to take down years’ worth of anti-abortion legislation, before the court makeup changes. In a 5-3 decision, the justices determined that provisions of the 2013 law didn’t provide “medical benefits sufficient to justify the burdens upon access that each imposes.” Emboldened by the ruling, abortion providers went through years of Texas regulations to determine others that could be challenged under the same health and safety standard, leading to the lawsuit filed against the attorney general, state health department, and others.
“I think of this as an omnibus repeal,” said Amy Hagstrom Miller, president of Whole Woman’s Health Alliance, the lead plaintiff in the HB 2 case and the new lawsuit. “There’s a new standard, and we can look at it to challenge a bunch of things at once.”
The lawsuit, which Hagstrom Miller calls “the big fix,” is far-reaching. Filed in federal district court in Austin, it challenges a parental notification law from 1999 and abortion reporting requirements from 2017. It takes issue with the state’s ultrasound requirement, mandatory waiting period, parental consent requirement, restrictions on medication abortion and telehealth services, provider licensing laws and more than 20 other restrictions.
Work began on the new lawsuit not long after the HB 2 decision. Last May, Hagstrom Miller hinted at litigation, saying at the reopening of her Austin clinic that “we have the opportunity to try to get some other things fixed by the Supreme Court before the makeup changes — if the makeup changes.” She had already started brainstorming this lawsuit, holding meetings with providers and scribbling regulations to tackle on whiteboards, she told the Observer on Wednesday.
The new challenge comes as conservative lawmakers around the country are aggressively pushing anti-abortion legislation. One bill proposed during the last session of the Texas Legislature would have criminalized abortion and charged women and providers with murder. The Legislature passed a measure that bans the most common form of second-trimester abortion, and another that requires the burial or cremation of fetal remains after abortions and miscarriages. Both are currently blocked, but some anti-abortion advocates hope to push the former to the Supreme Court.
The Trib lists the plaintiffs: the Whole Woman’s Health Alliance, the Afiya Center, Fund Texas Choice, the Lilith Fund, the Texas Equal Access Fund, the West Fund and Dr. Bhavik Kumar, who serves as medical director of the Whole Woman’s Health Alliance clinic. I can imagine them scoring at least a significant partial win in district court, then running into significant resistance from the Fifth Circuit – basically, exactly what happened with the lawsuit against HB2 – and after that who knows. It’s a bold strategy and has the potential for a lot of good, but as with any bold strategy there’s risk as well. Needless to say, I wish them all the best. A press release from the West Fund is here, and the Chron and Texas Monthly have more.