UPDATED: Most Texas Abortion Clinics Will NOT Close Next Week
Texas is working on it.
Photo by Francisco Montes
UPDATE: Yeakel issued his ruling on Friday afternoon, and to the surprise of pretty much no one he struck down the requirement that all abortion clinics be certified ambulatory surgical centers, according to the Texas Tribune. The lawsuit also asked that Yeakel suspend the admitting privileges requirement for two clinics -- Whole Woman's Health in McAllen and Reproductive Services in El Paso -- which were forced to close because of said requirement. Yeakel granted that request, meaning there might just be an abortion clinic option west of San Antonio within the Lone Star State again.
In his ruling, Yeakel said HB 2's ambulatory-surgical-center requirement "burdens Texas women in a way incompatible with the principles of personal freedom and privacy protected by the United States Constitution for the 40 years since Roe v. Wade."
Here's another choice line from Yeakel's decision:
When viewed in the context of the other state-imposed obstacles a woman faces when seeking an abortion in Texas -- including a sonogram requirement, a waiting period, and the reduced number of abortion-performing physicians resulting from the admitting-privilege requirement -- the court is firmly convinced that the State has placed unreasonable obstacles in the path of a woman's ability to obtain a previability abortion. These substantial obstacles have reached a tipping point that threatens to "chip away at the private choice shielded by Roe," Stenberg v. Carhart, 530 U.S. 914, 952 (2000) (Ginsburg, J., concurring), and effectively reduce or eliminate meaningful access to safe abortion care for a significant, but ultimately unknowable, number of women throughout Texas.
The decision is pretty much gilt-edge guaranteed to be appealed to the Fifth Circuit Court of Appeals, so this is not, most likely, the final word on the matter of HB2. You can read Yeakel's entire ruling at the end of this post.
Once upon a time, not so very long ago, there were 41 abortion clinics in Texas. If things don't change by Sept. 1, there may only be six or seven clinics left in the entire state.
Since House Bill 2 was slammed through the legislature last year (despite the filibuster that made state Sen. Wendy Davis and her hot pink running shoes an overnight political sensation), more than half the clinics in the state have been forced to close. Those closures happened as a result of the first portion of the law requiring clinic doctors to obtain hospital admitting privileges. That portion of the law -- which, after some legal scrapping, was ultimately upheld by a trio of judges on the federal Fifth Circuit Court of Appeals -- forced most clinics west of San Antonio to close, leaving thousands of women hundreds of miles away from obtaining a legal abortion, according to Fund Texas Choice.
The number of women of reproductive age in Texas living more than 200 miles from a clinic has shot from about 10,000 in May 2013 to about 290,000 in April 2014, according to a report from the Texas Policy Evaluation Project. Plus, women are required to have a sonogram and wait 24 hours before actually getting said abortion, so this isn't a one-day trip, no matter which way you look at it.
And this is all without even implementing the second part of HB 2.
The second portion of the law, which requires clinics to become certified ambulatory surgical centers, is slated to go into effect September 1. If it is allowed to do so, all but six or seven of the state's remaining clinics are expected to close, pending a decision from U.S. District Judge Lee Yeakel.
Last fall, Yeakel ruled against the admitting privileges portion of the law. His decision was ultimately overturned, but it's possible that the judge who found that the first section of HB2 wasn't all nice and legal might do the same on the second section. If Yeakel decides to rule against the law, the decision will almost certainly trigger an immediate appeal to the Fifth Circuit. Yeakel's first ruling was overturned by a trio of judges on this notoriously conservative leaning court.
However, the Fifth Circuit has been up to some interesting doings lately when it comes to the question of abortion clinics. Back in July an entirely different set of Fifth Circuit judges forced Mississippi to allow its last abortion clinic to stay open. Mississippi officials had argued that women seeking an abortion could simply cross state lines to Louisiana, or wherever, to exercise their legal right, but the court didn't buy it. Making women leave the state for an abortion constituted an "undue burden," the judges ruled. (The entire opinion by Judge E. Grady Jolly is a fine read if you've got the time.)
Texas lawyers were back in court arguing the merits of the portion of the law that requires clinics to become ambulatory surgical centers (not an easy or inexpensive thing to do in Texas) through most of August. State lawyers took a similar tack to those in Mississippi, arguing that women seeking abortions could cross state lines to New Mexico or some such place if they could not make the trek to the handful of clinics expected to stay open (all in urban areas and none west of San Antonio.)
Now there's nothing to do but wait and see. Will Yeakel rule that this part of HB2 places an undue burden on women, depriving them of a constitutional right? Will his ruling matter? Nobody knows. Either way, Yeakel is expected to issue his decision any time now.
UPDATE: Here's Yeakel's decision:
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