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Next lawsuit against HB2 is underway

We’ll see if the result this time is any better.

Texas abortion providers’ next attempt to block strict abortion regulations that the Republican-led Legislature passed last year begins Monday in Austin, where a federal court is considering whether to block a provision of the law that could shutter all but a handful of abortion clinics.

The lawsuit, brought by the Center for Reproductive Rights on behalf of several abortion providers, seeks to prevent the state from requiring abortion facilities to meet the same regulations as ambulatory surgical centers, or ASCs. Abortion providers are asking the U.S. District Court for the Western District of Texas to block the provision, which they say will leave fewer than 10 facilities operating in the state — and no abortion providers south or west of San Antonio.

The clinics argue that the measure will create an unconstitutional barrier for women seeking access to abortion. State attorneys contend that there isn’t enough evidence that the rules create an “undue burden” for the majority of women seeking abortion services.

The ASC requirement takes effect Sept. 1 and mandates that clinics have specific room and doorway sizes, along with locker rooms and infrastructure such as pipelines for general anesthesia. It’s the last remaining provision to be implemented after the passage last year of House Bill 2, which began to take effect in October.

[…]

Abortion providers say regulations that have been implemented since HB 2 took effect have already caused about a dozen abortion clinics to close. The provisions include a ban on abortions after 20 weeks of gestation and a requirement that all doctors who perform abortion procedures have admitting privileges at a hospital within 30 miles of an abortion clinic. The law also requires doctors to follow the U.S. Food and Drug Administration’s protocol for drug-induced abortions, rather than evidence-based protocol.

As of April, there were 24 active abortion clinics in Texas, down from 40 before the bill took effect. Several more clinics have shuttered since then, and more are expected to close when the ASC requirements provision goes into effect.

Abortion providers previously unsuccessfully challenged the law’s admitting privileges provision. In March, a three-judge panel decided that abortion providers had not proven that the requirement for doctors to have admitting privileges at nearby hospitals would create an “undue burden.”

The panel’s ruling overturned a decision by U.S. District Judge Lee Yeakel that had temporarily blocked the law last October. Yeakel will preside over this week’s trial, which is scheduled to last through Thursday.

Lawyers for the abortion providers said it should be easier to prove that the ASC requirement imposes an undue burden because the effect of the provision will be immediately felt when most of the remaining clinics shutter.

“This is a little different, because we’re talking about building facilities that cost millions of dollars. Either they already exist, or they’re not going to magically appear on Sept. 1,” said Esha Bhandari, an attorney representing the abortion providers.

See here for the background. I was, as you might expect, not exactly overflowing with optimism when this lawsuit was filed, given the past history and the looming specter of the Fifth Circuit. However, since then the Fifth Circuit refused to allow a similar law in Mississippi to close the last clinic in that state. They didn’t overturn the law, because of course they didn’t, but they did that much, even if all told it’s not saying much. I don’t know what that might mean in this case, but at least there’s some hope that it might be a little better than the usual sharp stick in the eye. TPM, Trail Blazers, the Current, and RH Reality Check have more.

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