The ruling on the lawsuit over HB2, the now-passed omnibus abortion bill that Wendy Davis opposed this summer, came down yesterday. Despite headlines like, “Texas Abortion Law Ruled Unconstitutional By Federal Judge,” and “Fed Judge: Texas Abortion Limits Unconstitutional,” the entire law wasn’t overturned—which led less breathless outlets to declare a “small pro-abortion victory.”
While many of those opposed to HB2 would take issue with being dubbed “pro-abortion” (rather than “pro-choice”), they seem to agree with the sentiment that the ruling isn’t exactly cause for massive celebration.
Here’s what was—and what wasn’t—found unconstitutional in the ruling:
Admitting Privileges For Doctors Who Perform Abortions
When outlets report that the abortion law was ruled unconstitutional, this is what they’re referring to: U.S. District Judge Lee Yeakel, a George W. Bush appointee, found that the requirement that doctors who perform abortions have admitting privileges at nearby hospitals creates an undue burden on Texans seeking abortion. “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,” Yeakel declared.
This provision wasn’t a minor part of the law—opponents argued in front of Judge Yeakel that it would have closed 13 of the state’s 32 remaining abortion clinics. Judge Yeakel issued an injunction preventing this part of the law from going into effect.
Pharmaceutical Abortion Restrictions
In addition to admitting privileges, Judge Yeakel found that under life-threatening circumstances, there would be room for exceptions to the requirements for RU486 and other pharmaceutical abortions. Specifically, he declared that “the medication-abortion provisions may not be enforced against any physician who determines, in appropriate medical judgment, to perform a medication-abortion using the off-label protocol for the preservation of the life or health of the mother.”
The restrictions on pharmaceutical abortions in HB2 require that abortion-inducing drugs can only be administered by doctors in the first 49 days of pregnancy; they also require that that the drugs, which require two doses be administered, both be received at the doctor’s office, along with a mandatory follow-up 14 days after the second dose. That increased the number of trips to a doctor’s office from two (the initial mandatory ultrasound and the first dose) to four. However, Judge Yeakel didn’t find that this created an undue burden in most cases—only in cases where the life and health of the person seeking the abortion are at risk, and the doctor finds that a surgical abortion is not an option.
Opponents of HB2 didn’t even challenge the twenty-week ban on abortion in the law, and so Judge Yeakel offered no opinion here. This part of the law goes into effect today.
Ambulatory Surgical Center Requirements
The provisions of HB2 that required every abortion provider meet the standards of ambulatory surgical centers—which opponents argued consisted of rules regarding the width of certain hallways and other trivial standards—were also not challenged, and these aspects of the law go into effect in September 2014.
Emergency Stay Of Injunction?
While it was expected that Attorney General Greg Abbott would appeal the decision, the state took the less-expected step of filing an emergency motion at two o’clock in the morning to stay the injunction. Normally, when an injunction is filed, that part of the law doesn’t go into effect until after the appellate court—in this case, the 5th Circuit Court of Appeals—issues a ruling. Abbott’s emergency motion asks the 5th Circuit to suspend the injunction, which would have the effect of putting the restrictions in place until the appeal is fully heard. That this will be determined by the conservative U.S. 5th Circuit Court of Appeals has pro-life supporters of HB2 pretty excited and opponents worried.
Ultimately, though, this is all unlikely to be resolved anytime soon, regardless of what the 5th Circuit says today in response to the emergency stay request. As State Rep. Gene Wu (D-Houston) put it on Twitter:
Don’t celebrate yet. This will go to SCOTUS. We will see if Kennedy will flip on 40 years of established law. #txlege
— Gene Wu (@GeneforTexas) October 28, 2013
The wave of new abortion laws around the country is likely to force new rulings on abortion from the court, and the legal battle is something that both opponents and supporters of the law welcome. When the bill passed in July, State Rep. Jodie Laubenberg (R-Rockwall), who authored the bill in the House, said that “it will probably go to the Supreme Court” and that she “welcome[s] the challenge.”
The expectation that it’ll reach the Supreme Court is also why provisions like the twenty-week ban weren’t challenged in Texas—challenges to that part of the law have already progressed further along in the courts in other states. So for now, the only real question is what’ll happen to the clinics in Texas that may close if the injunction is halted while the bigger legal battles play out.