Abortion
4:15 pm
Mon October 28, 2013

Federal Ruling In: Part of Texas' New Abortion Law is Unconstitutional

Update: With a federal judge blocking enforcement of a key restriction on abortion in Texas, here’s reaction from Gov. Rick Perry:

“Today’s decision will not stop our ongoing efforts to protect life and ensure the women of our state aren’t exposed to any more of the abortion-mill horror stories that have made headlines recently. We will continue fighting to implement the laws passed by the duly-elected officials of our state, laws that reflect the will and values of Texans.”

NARAL Pro Choice America President Ilyse Hogue:

"We are pleased but not surprised by this development. It has been clear from day one that the laws advanced by Governor Perry and others are unconstitutional and put women at greater risk. We will continue to fight to ensure all parts of this law, and other laws restricting women's health care options, which are clearly unconstitutional are defeated."


U.S. District Judge Lee Yeakel ruled a requirement that doctors have admitting privileges at a hospital within 30 miles of their clinics is unconstitutional. As for use of abortion-inducing drugs, Judge Yeakel ruled that physicians may decide how they’re administered to preserve the health and safety of the woman.

Yeakel released his ruling this afternoon after three days of testimony in Austin last week.

Update (2:23 p.m.): Judge Lee Yeakel has blocked one part of Texas’ new abortion restrictions from taking place, while partially allowing another provision to stand.

Judge Yeakel struck down the portion of the law pertaining to admitting privileges at nearby hospitals. He wrote the following in his decision: 

“Having carefully considered the parties’ briefing, stipulations, exhibits, trial testimony, arguments of counsel and the applicable law, the court concludes: 1) the act’s admitting privileges provision is without a rational basis and places a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”

But Judge Yeakel writes that medication-abortion changes in HB 2 – going by the FDA regimen instead of somewhat loosened evidence-based protocol – do not place an undue burden on Texas women, unless their health and safety is at risk.  Here’s Judge Yeakel:

“Although the medication- abortion provisions do not generally place an undue burden on a woman seeking an abortion, they do if they ban a medication abortion where a physician determines, in appropriate medical judgment, such a procedure is necessary for the preservation of the life or health of the mother.”

You can read the entire opinion here

Original story (1:23 p.m.): A federal judge is set to rule today on the constitutionality of two provisions in a restrictive abortion law that the Texas Legislature passed this summer.

The ruling will come one day before the law’s provisions, and a 20-week ban on abortions, go into effect tomorrow, Oct. 29.

At stake are two provisions:

  • Requiring an abortion doctor to have admitting privileges in a hospital within 30 miles from the clinic.
  • Requiring abortion doctors to follow FDA protocol in administering abortion-inducing medication.

During the hearing last week, U.S. District Judge Lee Yeakel said it's not the court's job to rule on whether women can have abortions, but whether or not the law –  House Bill 2, passed amid protest this summer – falls within "existing constitutional confines."

One of the U.S. Supreme Court decisions on which this case rests is Planned Parenthood vs. Casey from 1992. In its decision, the court ruled that a state can't impose an undue burden on a woman seeking an abortion  – in other words, a substantial obstacle in her path. In court, plaintiffs argued that when more than 12 of the state's 36 licensed abortion providers have to cease providing abortions due to the regulations, that creates an "undue burden."

Additionally, according to the plaintiffs, doctors in Texas have been using a lower dosage of the abortion-inducing medication than what’s suggested by the FDA. Women have been taking the second round of the medication at the place of their choosing.

The new provisions requires them to come back to the clinic to take it in front of the physician. Abortion providers say this will require a woman to travel up to four times to an abortion clinic, because of the Texas sonogram law from 2011.

The plaintiffs say that the state has the initial burden to prove that this law advances women’s health. The state argues that as long as a woman has access to an abortion, then it’s not unconstitutional. The plaintiffs argue that the state had to prove that. Both sides can ask for a stay, which means a temporary hold on the ruling while the appeals process moves forward.

Either side plans to appeal at the U.S. Court of Appeals, Fifth Circuit. This is the court that in 2012 upheld the Texas sonogram law that was originally blocked by the same federal court here in Austin. The state appealed and the Fifth Circuit court, based in New Orleans, reversed the lower court’s decision.

The lawsuit did not include the other provisions of HB 2. Those are the 20-week ban on abortions and the requirement that abortion clinics upgrade to ambulatory surgical centers, or ASCs. The plaintiffs have said they are concerned about the immediate impacts of the law, and since most women get abortions before 20 weeks of gestation, they didn't include that provision.

As for the ASC requirement, the Texas Department of State Health Services has not formally adopted the rules yet for the ASC upgrade. The clinics have until September of 2014 to make that upgrade. Once the state does adopt the rules and the provision is closer to going into effect, abortion providers might also move forward with legal action against that part as well.