Court Scolds Greg Abbott for Midnight Appeal on Abortion Ruling

Court Scolds Greg Abbott for Midnight Appeal on Abortion Ruling
Francisco Montes

When Federal District Court Judge Lee Yeakel knocked down a key component of the Texas' tough new abortion law Friday, we all knew Texas Attorney General Greg Abbott would immediately appeal the ruling. Apparently we underestimated just how quickly Abbott could pull together his argument.

While Abbott filed a notice of appeal with the federal Fifth Circuit appeals court Friday just after Yeakel's ruling, he apparently waited until midnight Sunday to actually send over his emergency motion asking for permission to implement the law this week. Had Abbott succeeded, more than half of the state's remaining clinics would have shuttered this week.

Yeakel's ruling last week, hailed as a stunning victory by reproductive rights advocates, had largely dismantled the state's arguments in favor of the new law's key provision, which requires abortion clinics to make costly upgrades to meet the standards of hospital-like surgical centers.

On the heels of a long-awaited four-day trial last month, Yeakel's ruling cited a "dearth of credible evidence" that the new requirement would make abortion clinics any safer (conservative lawmakers' key argument in passing the bill in the first place), said the new law places a "particularly high barrier for poor, rural, or disadvantaged women throughout Texas" who seek an abortion, and rejected the state's argument that the seven or so clinics that could survive the strict new requirement could possibly meet the demands of the second-largest population of reproductive-age women in the country.

For good measure, Yeakel even scolded the AG's office for paying $42,000 to Vincent Rue, an extreme anti-abortion activist (the Austin Chronicle called him the AG's anti-abortion "wordsmith"), to coach expert witnesses and for trying to cover up Rue's involvement in the case. "[T]he level of input exerted by Rue undermines the appearance of objectivity and reliability of the experts' opinions," Yeakel wrote. "Further, the court is dismayed by the considerable efforts the State took to obscure Rue's level of involvement with the experts' contributions."

Sounds like a mild benchslapping to us.

Apparently Abbott's office has now irked the Fifth Circuit court, too. In an order issued Tuesday evening declining Abbott's request to implement the law, the Fifth Circuit criticized Abbott for waiting for over two days to file his "emergency" stay with the court. Abbott had alerted the court clerk on Friday afternoon that his office would file the motion seeking to implement the abortion law while the case played out in the courts. But according to the Fifth Circuit:

"The appellants waited until 11:59 p.m. on Sunday August 31 to file the stay motion; a corrected version was sent at 12:08 a.m. on Monday September 1. This did not allow time for a response, or for the court adequately to consider the motion, before the scheduled effective date, though the appellants claim irreparable harm from the statute's not being enforced. Moreover, the tardy motion was well in excess of the number of pages that are allowed."

Abbott's emergency motion claims Yeakel's ruling ignores the history of the legal fight against Texas' abortion law. Abortion providers had already sued to block a portion of the law that requires abortion doctors to have hospital admitting privileges within 30 miles of where they practice. While Yeakel also struck down the provision in that case last year, an appellate court later overturned his decision.

Tuesday's Fifth Circuit decision means the state's remaining clinics should stay open until at least next Friday, when the court has scheduled oral arguments in the case. The plaintiffs in the case - Whole Women's Health and a number of other abortion providers - must file their arguments against Abbott's motion by 5 p.m. Monday.

Abbott's office has until 5 p.m. on September 10 to file a reply. And the Fifth Circuit included this not-so-subtle advice: "The attorneys should assume that no extensions will be granted."

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