The fate of HB2, the omnibus abortion law that passed in 2013 despite an unprecedented amount of public opposition, is still in question, nearly 18 months after being signed into law. Aspects of the law have gone into effect—doctors who perform abortions need admitting privileges at nearby hospitals in most parts of the state, and abortions after 20 weeks are illegal—but in October, the Supreme Court upheld an injunction against the requirement that all abortions take place in an ambulatory surgical center (and suspended the admitting privileges requirement for doctors in El Paso and McAllen).
That injunction was put in place pending an appeal to the 5th Circuit Court of Appeals, to whom the state of Texas appealed a decision by a federal district judge overturning much of HB2. The 5th Circuit initially granted the state’s request that the law go into effect pending the appeal, before the Supreme Court got involved and put everything on ice until the 5th Circuit heard the case on its merits.
The apellate court is hearing that case now, which means that the next few days are going to be critical for the fate of HB2 and abortion access in Texas. Here’s a rundown of what’s at stake, what could happen next, and what direction the wind is blowing.
What’s Happened So Far: Federal District Judge Earl Yeakel, a George W. Bush appointee, ruled that HB2 posed an undue burden to Texans seeking abortions, and overturned most of the laws. Abortion rights supporters didn’t celebrate, though, and anti-abortion foes didn’t mourn: Yeakel has ruled in favor of abortion rights before, and the state tends to quickly file appeals to the 5th Circuit Court, which tends to overturn Yeakel’s decisions.
The 5th Circuit didn’t hear the case in 2014, but it did grant Texas an emergency stay of Judge Yeakel’s ruling, which would put the law into effect until the court heard the case and made its ruling. The plaintiffs in the lawsuit—a coalition of abortion providers including Planned Parenthood and Whole Women’s Health—filed an appeal to the United States Supreme Court to allow Yeakel’s ruling to stand until the appeal was heard on its merits by the 5th Circuit. In October, the Supreme Court granted the plaintiffs injunctive relief.
What’s At Stake: After the Supreme Court granted the injunction, the clinics in El Paso and McAllen staffed by doctors without admitting privileges were allowed to remain open. More significantly, clinics that don’t meet the standards of an amublatory surgical center were allowed to remain open, as well. When the 5th Circuit issues its ruling, the Supreme Court’s injunction will expire—so if the 5th Circuit strikes down Judge Yeakel’s ruling in its entirety, the clinics that were granted a reprieve by the Supreme Court will be forced to close.
If the 5th Circuit chooses to uphold Judge Yeakel’s ruling, meanwhile, the clinics would continue to operate. For a few reasons we’ll get into shortly, that’s not the most likely outcome here, though.
What Could Happen Next: The 5th Circuit isn’t the ultimate authority here, so while the stakes are certainly high, there are a few things that can change the outcome that the 5th Circuit decides.
The most likely scenario is that the 5th Circuit strikes down Judge Yeakel’s ruling in its entirety. At that point, the plaintiffs in the suit can file another appeal to the U.S. Supreme Court, asking SCOTUS to suspend the 5th Circuit’s ruling until the Supremes themselves have heard the case. That might be granted—the fact that the Supreme Court got involved in October means that they’re receptive to the idea put forward by plaintiffs that closing these clinics temporarily is tantamount to closing them for good—but it might not.
Regardless of if injunctive relief is granted by the Supreme Court, though, the next part of this journey is an appeal filed to the Supreme Court. Most likely, it’ll be the plaintiffs filing the appeal, but it’s possible that if the 5th Circuit upholds Judge Yeakel’s ruling, the state of Texas will appeal their ruling to the Supremes. That’s not a guarantee, though.
Which Way The Wind Is Blowing: The 5th Circuit rarely disagrees with the state of Texas on abortion issues. In fact, aside from a decision to delay granting an emergency injunction last year, citing hastily-filed paperwork by the Attorney General’s office, the 5th Circuit has not found much not to like in HB2.
As the Austin Chronicle reported on Wednesday, though, the plaintiffs found some hope in the line of questioning that the 5th Circuit’s judges brought up in oral arguments this week:
On a press call following the hearing, Amy Hagstrom-Miller of lead plaintiff Whole Woman’s Health – a network of reproductive health providers, including a now closed Austin center – said she was “very encouraged” and “impressed” by Haynes and Elrod’s critical line of questioning – a notably atypical assessment of 5th Circuit reproductive health-related proceedings. Hagstrom-Miller said the justices “took seriously” the undue burden placed on women, especially in West and South Texas, and she was pleased by the ample time spent bringing to light the “illogic” of the New Mexico argument. In particular, she appreciated when Haynes cast doubt on the ASC rule’s ability to benefit the health of Texas women. In this instance, the 5th Circuit has at least “paid attention to the evidence” plaintiffs put forward, said Miller.
History suggests that the 5th Circuit isn’t going to offer a ruling in favor of the plaintiffs, in other words, but the world can be unpredictable sometimes, so it’s impossible to know for sure until a ruling is issued.
If Texas gets the outcome it seeks at the 5th Circuit, an appeal to the Supreme Court by the plaintiffs is inevitable: Indeed, the consensus among abortion providers and supporters of abortion access in Texas has been that the Supreme Court is the final venue for this law since before HB2 even passed.
That’s something that the lawmakers who passed the bill suspected, too—Jodie Laubenberg, the bill’s sponsor, acknowledged it 18 months ago. What’s not clear is, if the 5th Circuit gives the plaintiffs an upset win here, will Texas appeal to the Supreme Court?
That’s not a scenario we need to spend a lot of time on—it would be a serious upset for the 5th Circuit to uphold Judge Yeakel’s ruling—but it’s worth bringing up because losing at the Supreme Court level would have an impact on other states, and would challenge the constitutionality of future laws that the legislature might wish to pass. Texas certainly could appeal the case to the Supreme Court, should it lose at the 5th Circuit level, but it may not want to.
That’s not the most likely path for HB2 to the Supreme Court, though: Most likely, the 5th Circuit overturns Judge Yeakel’s ruling, and the biggest question will be whether the Supreme Court grants another injunction on that ruling, or if the law goes into effect while the plaintiffs appeal to the highest court in the land.
(AP Photo/Jonathan Bachman)