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To sue or not to sue?

Now that SB2 has passed, it’s time to consider the next move.

As an omnibus bill restricting abortion access in Texas makes its way to Gov. Rick Perry’s desk, opponents of the measure are already weighing the possibility of suing the state to stop implementation of the regulations, which lawmakers approved last week.

“There are no decisions about litigation, but I think that may be the course we have to follow,” said Terri Burke, executive director of the American Civil Liberties Union of Texas. Burke said the ACLU Texas legal team is evaluating potential challenges to the bill and that any litigation would be part of a larger strategy that includes attempting to influence elections. The organization is one of a handful considering a legal challenge to the restrictions.

Any lawsuit challenging House Bill 2 would likely be based on U.S. Supreme Court rulings in Roe v. Wade and Planned Parenthood v. Casey, the latter of which held that state laws cannot erect substantial obstacles to women seeking abortions, said Janet Crepps, senior counsel for the Center for Reproductive Rights, a national abortion rights organization based in New York.

But Kyleen Wright, president of Texans for Life, said recent cases such as the conviction of Pennsylvania doctor Kermit Gosnell bolster the argument that HB 2 provides necessary reforms to ensure safe abortion procedures. Wright said the bill’s ban on abortions after 20 weeks is “pushing the envelope a bit,” but she added that that component is based on laws in other states that have not been challenged.

[…]

The timeline for undertaking a legal challenge remains unclear, though. Talk of potential lawsuits arose during the extensive debate over the bill in committee hearings and on the Senate floor. But reproductive rights groups are waiting for Perry to sign the bill before taking legal action, Burke said. The bill is set to take effect 91 days after the special legislative session ends.

Crepps said the Center for Reproductive Rights is talking with Texas-based abortion providers and is considering a legal challenge to the abortion restrictions. She would not elaborate on which providers the center was speaking with, citing attorney-client privilege.

The center, which Crepps said had been following the debate over HB 2, also challenged the 2011 sonogram law and has a “long history of bringing litigation against Texas,” she said.

Both Crepps and Burke said that if a lawsuit is filed, it would likely happen before the 91 days end, and the groups could seek an injunction to block the implementation of some compenents of the new law. Similar legislation in Georgia, Alabama and Wisconsin has been temporarily blocked pending court rulings.

And the 20-week ban in the Texas law has been compared to an Arizona law that was recently overturned by the California-based U.S. 9th Circuit Court of Appeals.

Crepps said an initial challenge in Texas could focus on three main parts of HB 2 — the 20-week ban on abortions, regulations on the medication abortion drug RU-486 and the requirement that abortion providers have hospital privileges. The fourth part of the bill, which requires abortion facilities to meet ambulatory surgical center standards, would not take effect until 2014.

As a reminder, here’s an overview of current abortion litigation. Obviously, winning elections is the only real way to change things, but in the meantime clinics will close and women will be hurt while we work to make that happen. Litigation is the only way to stop that from happening, because some things cannot be undone.

As we know, this tactic is hardly without risk. Emily Bazelon spells it out.

The Texas abortion restrictions that passed last week could close most of the clinics in the state and send women across the border to Mexico for pills that induce miscarriage in the first trimester. It’s also the big new abortion law with the best chance of landing before the Supreme Court.

I don’t say that lightly.  Many of the scores of restrictions the states have passed since the 2010 elections (when Republicans took over a whole bunch of statehouses) will meet their end in the lower courts. Unless and until Roe is overturned, they are clearly unconstitutional, and most judges will say so and strike them down. Other laws so far have gone unchallenged, either because they don’t affect many women seeking abortions (this is true for 20-week bans in states where doctors haven’t been doing, or at least say they don’t do, late-term procedures anyway) or just haven’t gotten attention from pro-choice lawyers yet. But the Texas bill is too big to ignore. It threatens to take away access to abortion—in the first trimester as well as later—from tens of thousands of women. Abortion rights advocates have to challenge it in court. And when they do, the case will wind up in front of the U.S. Court of Appeals for the 5th Circuit. That is a court with judges who have clearly signaled their interest in upholding abortion restrictions if they possibly can. The 5th Circuit’s eventual ruling could well conflict with the decision of other appeals courts—creating the kind of split that the Supreme Court is supposed to resolve.

We knew that was where this was heading, right? I hate the idea of going down this road, but I don’t see any good alternative. If you thought the Obamacare litigation was nerve-wracking, get ready for more of the same.

Oh, and by the way, that so-called “omnibus” anti-abortion bill, which was signed yesterday, was not the last word in anti-abortion legislation, despite its name. Nope, it clearly didn’t go far enough for some people. Because it’s all about women’s health and safety, you know. Of course, if you want to be consistently “pro-life” there is a way to do it, not that it will ever be considered here. BOR and The New Republic have more.

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4 Comments

  1. matx says:

    Newly-announced gubernatorial candidate Greg Abbott and current TX AG would have to defend the state if a lawsuit is filed. While this will undoubtedly boost his cred with “pro-lifers” (he had them anyway), it will damage his campaign for governor among women, moderates and undecided voters. While Abbott appears to be the strongest candidate for governor at this time, he is not necessarily the anointed one. He won’t be able to distance himself from Perry and his policies, as he seems to want to.

  2. […] the Kuff discusses the status of abortion litigation as pro-choice forces in Texas prepare to file suit over Texas’ harmful new […]

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  4. […] the Kuff discusses the status of abortion litigation as pro-choice forces in Texas prepare to file suit over Texas’ harmful new […]

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