Last summer, after the shouting died down and the omnibus abortion bill HB2 was signed into law by Governor Perry, the future of abortion access in Texas moved from the legislature to the courts. So far, the pattern seems to function almost like clockwork: Opponents of the law file suit in the Western District Court of Texas, in Austin, that has initial jurisdiction. Judge Lee Yeakel, whose ear seems to be sympathetic to their arguments, grants injunctory relief. Texas Attorney General (and gubernatorial hopeful) Greg Abbott petitions the Fifth Circuit Court of Appeals for a stay of that injunction, which that court—whose sympathies seem to align with the AG’s arguments—grants, preventing Judge Yeakel’s injunction from taking effect. Then, eventually, the case is heard on its merits by the Fifth Circuit.
The first suit was filed by a collection of abortion rights organizations from around the country, challenging the constitutionality of the law. The Fifth Circuit upheld the law in March, and a second lawsuit was filed by a coalition of abortion providers shortly thereafter, challenging the law on the grounds that some of its provisions caused an undue burden on Texans seeking abortions. Judge Yeakel’s injunction was stayed by the Fifth Circuit last week. That court hasn’t yet heard the case on its merits—last week’s ruling was simply a stay on the injunction, which allowed the law to go into effect—but HB2 opponents, at this point, aren’t optimistic about their chances in front of that collection of judges.
With that cycle seemingly well-established, it’s likely that the next stages in the journey of HB2 is going to see the question about abortion in Texas on an even bigger stage. Here’s what you should know:
What Are the Immediate Next Steps
Last Friday, most of the clinics providing abortion services in Texas closed. Currently, there are eight clinics open, all of them centered in Austin, San Antonio, Houston, or the DFW area. That’s the way it’s likely to remain for the immediate future—but Whole Woman’s Health, one of the plaintiffs in the second lawsuit, filed an emergency application with the U.S. Supreme Court to block HB2 from going into effect.
That application was filed to Judge Antonin Scalia, who oversees emergency matters within the Fifth Circuit’s jurisdiction. Scalia has the authority to rule on his own, or to involve his colleagues on the court, in regard to the plaintiffs’ request for immediate relief. Scalia gave Texas until noon tomorrow to respond to the request.
Scalia’s own attitudes toward abortion have been well-documented, and he’s not the most sympathetic judge that the plaintiffs could have drawn. In the 1992 case of Planned Parenthood vs. Casey, for example, Scalia wrote in his dissent that:
The States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so. The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.
In other words, it wouldn’t be inaccurate to call the request for emergency relief from the Supreme Court something of a Hail Mary play from the plaintiffs. But until the Fifth Circuit rules, and—assuming that court follows the pattern outlined above—the plaintiffs are in a position to appeal to the entirety of the Supreme Court, it’s the only play they have left.
Where Do Abortion Providers Stand Now
The eight clinics that remain open meet the requirements outlined by HB2. The clinics that don’t meet those requirements were forced to close. But there was one exception to these rules: The Fifth Circuit found that an undue burden was created for people in El Paso who sought abortions, because the distance to the nearest Texas clinic—which is in San Antonio—was over 500 miles. (Texans seeking abortions who live in the Rio Grande Valley, meanwhile, did not meet that undue burden requirement, at roughly 250 miles.) That may seem like an arbitrary measurement to define “undue burden,” but the result was a curious exception: The one El Paso clinic that was party to the lawsuit was allowed to remain open despite not meeting the HB2 requirements, pending the full appeal.
That sounds significant, but it isn’t: That clinic, Reproductive Services (whose parent company, Nova Health Systems, was party to the lawsuit) closed for other reasons in June. However, the other El Paso clinic that provided abortion services, Hilltop Women’s Reproductive System, continued providing services through Saturday afternoon.
Based on the seventeen-page ruling from the Fifth Circuit, it appears that, had Hilltop been a party to the lawsuit, it would have been granted the same exemption as Reproductive Services. But it wasn’t, so it wasn’t, and that created a lot of confusion over the weekend:
“When Friday came around, Dr. Theard went ahead and he bought the newspaper and he called and said he said, ‘you know what? we have been exempt; this clinic can continue to function,'” said Gloria Martinez, a nurse administrator at the clinic.
She said they called around, looking for answers.
“Finally, Dr. Theard got a call back and told him that yes that is correct. That that had been a very unusual decision, but that we could continue to function until further notice,” Martinez said.
They provided abortion services, under the impression Hilltop Clinic was exempt from the ruling. Specifically the requirements for surgical ambulatory standards which requires things such as specific sizes for rooms and doorways, pipelines for general anesthesia, and large sterilization equipment.
We received this statement from the Department of State Health Services.
“We’ve notified the clinic that they are not exempt from the law and they agreed to stop providing services. There was miscommunication on our part yesterday that led them to believe they were exempt.”
Hilltop has another clinic on the other side of the Texas/New Mexico border, in Santa Teresa—eleven miles down the road—that continues to provide abortion services, while the Texas clinic is still open, but no longer providing abortions.
What Does The Future Hold?
It’s possible that the Fifth Circuit, open hearing the full case on its merits, will agree with Judge Yeakel that HB2 creates an undue burden on Texans seeking abortions—but the recent history doesn’t make that seem likely. Regardless of what happens at that level, though, a Supreme Court appeal is inevitable—the only question would be whether it’d be filed by the plaintiffs or by the state of Texas.
That’s a fight that both sides seem to want. State Rep. Jodie Laubenberg, who introduced the bill in the House, said as much last summer, and barring an upset at the Fifth Circuit level, it’s the only place left for opponents of the bill to go. When that happens, the precedent that the ruling sets will likely be transformative—perhaps the biggest decision on abortion rights in the U.S. since Roe v. Wade.
But in the meantime, there’s another option for Texans seeking abortions: As the Texas Tribune reports, doctor’s offices in the state can provide abortion services without an abortion license, if they perform fewer than fifty procedures a year. That’s a statute that could presumably change if the legislature wants to take abortion back up when it meets again next year, but—at the moment, at least—there’s a little more than just HB2 to talk about when discussing abortion in Texas.
(image via Flickr)
