Texas Abortion Ruling Isn’t a Big Victory for Wendy Davis

The decision blocks some regulations from taking effect this week, but the fight is far from over, both for Texas and for pro-choice activists.

State Sen. Wendy Davis, D-Ft. Worth, contemplates her 13-hour filibuster after the Democrats defeated a Texas anti-abortion bill in June.
National Journal
Brian Resnick and Matt Berman
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Brian Resnick and Matt Berman
Oct. 28, 2013, 12:04 p.m.

A fed­er­al judge ruled Monday that Texas’s re­stric­tions in a new abor­tion law are un­con­sti­tu­tion­al, a de­cision that will pre­vent them from tak­ing ef­fect Tues­day, as sched­uled. On its face, the rul­ing is a big boost for Wendy Dav­is and oth­er op­pon­ents of Texas’s reg­u­la­tions. But just be­cause one judge says the rules won’t fly doesn’t mean that an­oth­er won’t over­turn him. Texas At­tor­ney Gen­er­al Greg Ab­bott is ex­pec­ted to ap­peal.

Dis­trict Judge Lee Yeak­el’s de­cision stated that the reg­u­la­tions vi­ol­ated the rights of abor­tion doc­tors and would re­strict ac­cess for wo­men to abor­tion clin­ics. Of the law, he wrote, it “does not bear a ra­tion­al re­la­tion­ship to the le­git­im­ate right of the State in pre­serving and pro­mot­ing fetal life or a wo­man’s health and, in any event, places a sub­stan­tial obstacle in the path of a wo­man seek­ing an abor­tion of a non­vi­able fetus and is thus an un­due bur­den to her.”

The law would have closed a third of the abor­tion clin­ics in the state, as doc­tors in abor­tion clin­ics would have to be as­so­ci­ated with a hos­pit­al with­in 30 miles. But as The Wall Street Journ­al ex­plains it, “Many Texas hos­pit­als are likely to deny ad­mit­ting priv­ileges for busi­ness reas­ons or be­cause of polit­ic­al and mor­al ob­jec­tions to abor­tions.” Also, Yeak­el wrote that the state did not provide suf­fi­cent evid­ence for its po­s­i­tion — that hav­ing an abor­tion doc­tor as­so­ci­ated with a hos­pit­al im­proves pa­tient out­comes in the case of an emer­gency. After all, hos­pit­als can­not deny pa­tients. “The court con­cludes that ad­mit­ting priv­ileges have no ra­tion­al re­la­tion­ship to im­proved pa­tient care.”

The court or­der also blocks re­stric­tions on abor­tion drugs. Ac­cord­ing to the Hou­s­ton Chron­icle, Yeak­el said those re­stric­tions

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….

There­fore, the court con­cludes that the med­ic­a­tion-abor­tion pro­vi­sion of House Bill 2 is an un­due bur­den on those wo­men for whom sur­gic­al abor­tion is, in the sound med­ic­al opin­ion of their treat­ing phys­i­cian, a sig­ni­fic­ant health risk dur­ing the peri­od of preg­nancy fall­ing 50 to 63 days LMP.

Two com­pon­ents of the bill — a ban on abor­tions after 20 weeks of gest­a­tion and a stand­ards re­quire­ment for clin­ics — are not be­ing chal­lenged. The ban will go in­to ef­fect Tues­day.

Texas state Sen. and, as of Septem­ber, Demo­crat­ic gubernat­ori­al can­did­ate Wendy Dav­is launched a 11-hour fili­buster of the state’s abor­tion bill in June. The fili­buster, which per­sisted in the face of tough rules (Dav­is couldn’t wander off top­ic, for in­stance), helped to delay the pas­sage of the bill un­til a spe­cial le­gis­lat­ive ses­sion in Ju­ly. It also helped to rock­et her to na­tion­al polit­ic­al fame and set up her cam­paign for gov­ernor.

After the bill was passed, Planned Par­ent­hood, along with oth­er wo­men’s health groups, filed suit.

The judge in the case, Yeak­el, was ap­poin­ted to the court by then-Pres­id­ent Bush in 2003. This isn’t the first time Yeak­el has weighed in on an abor­tion-re­lated is­sue. In April 2012, he ruled that a law that would ban Planned Par­ent­hood from re­ceiv­ing state funds was un­con­sti­tu­tion­al.

But that case could be in­struct­ive: Just a few months later, in Au­gust, a 5th Cir­cuit Ap­peals Court re­versed Yeak­el’s rul­ing, free­ing Texas to im­pose the fund­ing ban.

This fight is far from over, both for Texas and for pro-choice act­iv­ists. The state’s at­tor­ney gen­er­al is ex­pec­ted to file an ap­peal to the 5th Cir­cuit Court of Ap­peals, which could take months to go through. While the re­stric­tions are on hold right now, there’s no reas­on to think they’re cer­tain to stay that way.

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