As expected, Republican Attorney General Greg Abbott filed an appeal to the 5th Circuit Court Sunday to overturn a recent federal court ruling that found parts of Texas’ abortion law, House Bill 2, unconstitutional.
Abortion providers filed suit over a regulation, that was set to take effect today (Sept. 1) that would mandate clinics spend up to $3 million to comply with the same building standards as ambulatory surgical centers. They also challenged a portion of the law that requires physicians to obtain admitting privileges at a hospital within 30 miles of where any procedure is performed for recently closed clinics in underserved communities – the Whole Woman’s Health clinic of McAllen and Reproductive Services of El Paso.
U.S. Judge Lee Yeakel concluded the two provisions of the law posed an “undue burden” on abortion-seeking women, in a ruling issued late Friday afternoon.
In its “emergency motion” to stay the ruling, pending appeal, the state argues Yeakel’s ruling, “fails to recognize or apply the binding precedents of this Court and the Supreme Court.” Plaintiffs could not prove that the ASC law would subject a “large fraction” of the state’s abortion patients to “unduly burdensome driving distances,” the state writes.
While Yeakel found the ASC statute was enacted with the purpose of imposing an undue burden on abortion patients, the state countered there was no evidence of the legislature’s motives during trial. The state also took issue with the court’s “inexplicable” decision to place a statewide injunction against HB2’s admitting-privileges law despite its applied challenge for just two clinics.
Further the state claims it is, “suffering immediate injury” from the purported injunction against the already in effect admit privileges law; the state requests the Court immediately stay this ruling (regardless of a response from plaintiffs).
Defendants have asked the appellate court to respond by Friday, Sept. 5.
So Friday’s reprieve could last no more than a week, depending on how much the Fifth Circuit sucks this time around. I’m one of those people that can’t help but hope for the best even when he knows better, so I’ll try to be prepared for disappointment. For a look at what will happen if the Fifth Circuit does its thing again, see RH Reality Check.
UPDATE: Ha ha ha ha!
A federal appeals court on Tuesday evening declined Texas Attorney General Greg Abbott’s request for permission to immediately start enforcing a key piece of the state’s tough new abortion law, instead scheduling a hearing about the issue for next Friday in New Orleans.
The move almost certainly means that a federal judge’s decision declaring the provision unconstitutional will remain in effect at least through next week, saving most abortion facilities in the state from planned closures.
A three-page order from the appeals court criticized Abbott, saying he “waited until 11:59 p.m. on Sunday August 31 to file the stay motion; a corrected version was sent at 12:08 a.m. on Monday September 1. This did not allow time for a response, or for the court adequately to consider the motion, before the scheduled effective date, though the appellants claim irreparable harm from the statute’s not being enforced. Moreover, the tardy motion was well in excess of the number of pages that are allowed.”
The order set arguments on the motion for 10 a.m. next Friday.
The pessimistic view of this is that it’s just the court expressing its annoyance at Abbott for not following procedure so they could swat down the court order as they’d always planned to do. This is the Fifth Circuit we’re talking about, after all. Nonetheless, I’m going to enjoy this little moment of schadenfreude while I can. If Greg Abbott were marginally competent, he’d truly be dangerous.