Despite hours of testimony, days after days of relentless protesting by pro-choice advocates who came out by the thousands and overwhelming scientific consensus from major medical organizations, a draconian bill that would likely shut down all but five clinics in Texas passed through the state Legislature last week.
The omnibus legislation bans abortion at 20 weeks of pregnancy, requires hospital admitting privileges for abortion doctors, insists patients follow an arduous protocol when taking abortion-inducing drugs and compels abortion clinics to comply with the same standards as ambulatory surgical centers (ASCs)—37 of the state’s 42 clinics would likely close upon enforcement due to expensive and unnecessary building facility upgrades.
While State Sen. Wendy Davis’ (D-Fort Worth) now famous filibuster successfully stopped the bill in its tracks during the first round, Gov. Rick Perry—who earlier this year declared he would ‘make abortion a thing of the past’—simply called up a second Legislative special session where Republican majorities in both chambers glided the legislation to victory.
Anti-choice bill authors refused to be slowed down by a flurry of amendments from Democratic lawmakers aimed at reducing unplanned pregnancies and thus, abortions—like promoting sexual education in public schools and infusing the depleted family planning funding stream—quickly fending off each and every one with little attempt at explanation, lending more credence to the notion that the measures are meant to reduce abortion access under the pretense of protecting women’s health.
Now, the bill moves to Perry’s desk for assured approval. But then what? Will the legislation take effect in 2014, as it’s supposed to, or be met with a legal challenge?
To predict the outcome, look no further than other states where abortion restrictions have been enacted. In the national sweep to dismantle reproductive health, states adopted some 45 provisions to severely limit access to abortion during the first six months of this year alone—a figure that matches the total number of restrictions in all of 2012, according to the Guttmacher Institute. Since 2010, 180 pieces of abortion restrictive legislation have made it through 30 different statehouses.
However, not all of these laws survived—many have been tied up in litigation or struck down.
For instance, 20-week abortion bans met court challenges in Arizona, Idaho and Georgia, resulting in preliminary or permanent enjoinment, according to the Center for Reproductive Rights, a group that mounts some of the legal battles themselves. Similarly, restrictions on medication abortion were blocked in Oklahoma and temporarily halted in North Dakota. Hospital admitting privileges were challenged and temporarily stopped in Wisconsin, Mississippi and Alabama, where a federal judge concluded the measure would cause a “permanent destabilizing effect.” The state-mandated transition to an ASC—which would shutter the majority of the Texas’ clinics—was preliminarily struck down in Kansas in 2011.
In other words, the precedent is there—each of the four parts of Texas’ all-in-one bill have been deemed unconstitutional by other courts. That being said, the legal landscape in Texas may make the climb a bit steeper.
The notoriously conservative U.S. Fifth Circuit Court of Appeals hasn’t ruled favorably for reproductive rights advocates in Texas, instead the New Orleans-based appellate court is often seen as a green light for anti-choice activists.
For instance, after CRR challenged abortion restrictions in 2011, the Court upheld the law requiring women to hear the fetal heartbeat and view a sonogram image of the fetus before an abortion, striking down a lower district court’s ruling of unconstitutionality. In a months-long volley, a three-judge panel of the Court also ruled Texas could exclude Planned Parenthood from the Women’s Health Program, a Medicaid service for low-income women.
Blake Rocap, legislative counsel with NARAL Pro-Choice Texas, told the Current he expects the bill to be challenged in court. His sense is that the Fifth Circuit’s decision is very much contingent upon which judges are assigned on the panel hearing the case.
For instance, one name that would ensure the law’s passage is Judge Edith Jones, a stalwart of the anti-abortion right, who considered the sonogram law helpful to women. On that note, Jones is currently facing a possible judicial conduct investigation for allegedly making racist remarks, clouding the panel prediction for now.
Ultimately, Rocap says that given precedent and bill authors’ inability to deliver scientific evidence to back up claims, the end result could mean a victory for pro-choice Texans.
“[C]onsidering prior rulings and the Texas Legislature’s failure to provide any facts to show how these restrictions are related to any governmental interest, I wouldn’t be surprised if they were all struck.”
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