Texas and the Supreme Court

 

What’s next now that the Supreme Court has blocked Texas from enforcing parts of pro-life H.B. 2?

By Dave Andrusko

Left to right. Justice Samuel Alito, Justice Clarence Thomas, Justice Antonin Scalia.

About the time I was getting ready to leave the office last night, the Supreme Court issued a five-sentence order blocking parts of H.B. 2, Texas’ 2013 omnibus pro-life bill, from taking effect. I dashed off what I hope was a helpful albeit quick summary. What follows is an equally brief follow-up with the caveat that pro-abortionists have filed two separate lawsuits, making for a mind-bogglingly complex situation.

In brief (as brief as this can be), the justices were responding to an insistent plea by the Center for Reproductive Rights (CRR) to stay (block) an October decision by a three-judge panel of the 5th U.S. Circuit Court of appeals that upheld the requirement that abortion clinics meet the same building standards as ambulatory surgical centers.

Six of the nine justices agreed with the request (Justice Antonin Scalia, Justice Clarence Thomas, and Justice Samuel A. Alito Jr. said they would have allowed the entire law to be enforced). The effect is to allow the clinics to remain open while appeals proceed.

In addition, the justices also exempted clinics in El Paso and McAllen from another part of the law that requires abortionists to have admitting privileges at a hospital within 30 miles of the abortion clinic. (The CRR argued that abortion clinics were especially hard-hit in this part of Texas.) But the admitting privileges rule remains in effect elsewhere in Texas.
(Note that CRR has not challenged the Pain-Capable Unborn Child Protection Act, which is part of HB2. This provision prohibits killing unborn children who have reached the developmental milestone of being able to feel pain, which substantial medical evidence places at 20 weeks, if not earlier.)
Trying to put this latest development in context…well now it gets complicated.
As NRL News Today explained back in March, another three judge panel from the 5th Circuit unanimously agreed that two provisions could go into effect statewide: the aforementioned admitting privileges and the requirement that abortionists follow the FDA protocol for administering chemical abortifacients (“RU-486”). CRR appealed to the full 5th Circuit.

A few days ago, the 5th Circuit refused to review the panel’s decision.
Meanwhile, in August, Austin-based U.S. District Court Judge Lee Yeakel barred enforcement of the ambulatory surgical centers provision and the admitting privileges provision.
As even the New York Times reported at the time

“In an unusual move, the judge granted the abortion providers who sued the state broader relief than they had requested. Lawyers for abortion facilities had asked him to strike down the requirement as it applied to two clinics, in El Paso and McAllen. But Judge Yeakel ruled the admitting-privileges requirement and the surgical-center standards, operating together, put undue burdens on women statewide, and created “a brutally effective system of abortion regulation that reduces access to abortion clinics.”

But on October 2, a different three-judge panel of the 5th Circuit stayed the Yeakel’s decision, thus allowing the state of Texas to enforce the key requirements immediately.
What follows is a summary of some of the many legal threads.
First, the 5th Circuit will presumably rule on the merits of the challenge to the requirement that abortion clinics meet the same building standards as ambulatory surgical centers. The state of Texas offered a litany of reasons why this is essential to safeguarding women’s health. Pro-abortionists say they are costly and unneeded requirements.

Second, the Pain-Capable Unborn Child Protection Act remains in effect as does the requirement that abortionists follow the FDA protocol for administering chemical abortifacients.
Three, the High Court has not addressed the legal merits of any of the challenges to various components of H.B. 2

Source: NRLC News