House Bill 2 Goes Back to Court

January 5, 2015

In July 2013, with a scratch of a pen while wearing his trademark “tough Texas cowboy” scowl, former Texas Governor Rick Perrysigned into law one of the most damaging anti-choice bills in US history: House Bill 2 (HB2). The law is equipped with four provisions designed to regulate abortion providers out of business and make it very difficult for physicians to provide safe, affordable abortion care to the millions of people of reproductive age in Texas. It’s among the many anti-abortion bills that qualify as a Targeted Regulation of Abortion Providers (TRAP) law, or legislation specifically written to shut down clinics and block access to abortion for the citizens of their respective states.

The 5th Circuit Court of Appeals in New Orleans.

To date, two lawsuits have challenged the law in federal courts: Planned Parenthood v. Abbott and Whole Woman’s Health v. Lakey. The district court judge issued an injunction in the Planned Parenthood case, which the 5th Circuit overturned and the admitting privileges and medication abortion restrictions went into effect, forcing more than half the clinics in Texas to close in 2014. Whole Woman’s Health challenges the ambulatory surgical center building requirements statewide and admitting privileges as applied to clinics in El Paso and McAllen. The lower court’s injunction is still in place, thanks to an order from the United States Supreme Court. The 5th Circuit will hear Whole Woman’s Health on the merits on Wednesday.

Tying the Hands of Physicians, Shuttering Clinics and Disenfranchising Texans

To review, here’s what HB2 requires:

Ambulatory surgical center (ASC) requirement

HB2 mandates that all abortion clinics in Texas meet the standards of an ambulatory surgical center, or mini hospital, with multimillion-dollar reconstruction costs that most clinics cannot afford. By including modifications like changes to hallway widths, air ventilation systems and increasing the square footage of operating rooms, this provision has been called a backdoor tax that legislators are making abortion providers pay. Whole Woman’s Health, a Texas-based abortion provider at the frontlines in the battle against HB2, has a great side-by-side comparison of what this provision looks like for abortion clinic infrastructure costs compared to those needed to qualify as an ASC. This provision has been temporarily blocked in the entire state by the Supreme Court pending the hearing at the 5th Circuit this week.

Hospital admitting privileges requirement

Among one of the bigger copycat TRAP laws that have already passed across the nation, this provision requires that doctors providing abortion care apply for and obtain hospital admitting privileges at a hospital within 30 miles of the clinic where they practice. Most of the time doctors have to wait for up to 160 days for their application to be processed, and that’s only if the hospital will even grant them an application. Many hospitals are religiously affiliated with strict bylaws against doctors who provide abortion care and will inevitably deny them privileges. The majority of hospitals are also looking to grant privileges to doctors that will bring them the most patients, and since abortion is one of the safest medical procedures a person can have, hospitals will deny an application for privileges based simply on the amount of patients that any given doctor is projected to bring in. This provision is currently part of both lawsuits against House Bill 2 and is temporarily paused by a Supreme Court order only in the Rio Grande Valley and El Paso until the hearing at the 5th Circuit this week.

Requiring physicians to follow an outdated FDA label for medication abortion

Instead of adhering to evidence-based protocols when administering a medication abortion, HB2 requires physicians to follow an outdated FDA label (or instructions on how to administer a drug) for the abortion pill and flies in the face of years of research and doctors’ practical experience. With the new regulations, patients seeking a medical abortion will now have to make four trips to the clinic: one for the mandatory sonogram 24 hours in advance, once for the first dose of the drug, again for the second dose and a fourth time for the follow-up visit. Though supporters of HB2 will tell you the law is about “increasing women’s health and safety”, this provision in particular actually increases the risk of the patient having complications or even miscarrying on their way to and from the clinic. This provision was challenged during the first lawsuit against House Bill 2 and was not struck down.The Supreme Court recently declined to take an appeal after the lower court struck down a law with the exact same provision, perhaps signaling for some good news down the road.

A 20-week ban on abortion

Although fewer than one percent of abortions happen after 20 weeks in Texas with most of them occurring when tragic circumstances develop during an intended pregnancy, HB2 places a post-20 week ban on abortion with no exceptions for rape or incest. The language of a 20-week ban is consistently supported by bogus anti-choice “science”, claiming that a fetus feels pain at 20 weeks even though this has been repeatedly discredited by physicians and researchers. The provision only has narrow exceptions for the patient’s health or in the instance of a fetal anomaly, leaving those facing a heartbreaking situation no option but to leave the state for the health care they desperately need. This provision has not been challenged yet in court, and after a lower court struck down Arizona’s 20-week ban, the Supreme Court declined an appeal, leaving the lower court’s decision in place.

House Bill 2’s judicial journey

Two lawsuits have been filed against HB2: Planned Parenthood v. Abbott (2013) and Whole Woman’s Health v. Lakey (2014).

In the case of Planned Parenthood v. Abbott, both the hospital admitting privileges provision and FDA protocol for the medication abortion provision were challenged, arguing that they create an undue burden on people seeking abortions in Texas. Judge Lee Yeakel, who presided over the case during its first trial in Austin, blocked the admitting privileges requirement in its entirety but said that plaintiffs did not provide enough evidence that the medication abortion provision was causing an undue burden. After the state filed an emergency appeal, the 5th Circuit issued a stay of Judge Yeakel’s injunction on Halloween night, allowing the law to go into effect and immediately shutting down almost a third of clinics in the entire state overnight. After a hearing on the merits, the 5th Circuit upheld the law. The case wasn’t appealed to the Supreme Court.

Whole Woman’s Health v. Lakey challenges the ambulatory surgical center provision as well as the hospital admitting privileges provision as applied to clinics in McAllen and El Paso, both areas that completely lost access to abortion care after doctors were unable to get privileges. Plaintiffs in the case (Whole Woman’s Health and dozens of other providers represented by the Center for Reproductive Rights) were successful in proving that both the ASC provision and the hospital admitting privileges provision were undue burdens to both providers and patients, securing an injunction by Judge Yeakel and reopening important clinics that served communities most in need. While the injunction for hospital admitting privileges only applied in McAllen and El Paso, the ASC provision was blocked statewide. This decision was once again short-lived after the 5th Circuit stayed the lower court’s injunction and reinstated the provisions, effectively shutting down all but eight clinics in the state. Almost immediately, plaintiffs requested that the Supreme Court step in and reinstate the lower court’s injunction. In a surprising move for both sides, the Supreme Court granted the request and temporarily blocked the law, which meant that clinics that had to close could reopen.

That brings us to the present time in HB2’s legal tug of war. The 5th Circuit will hear oral arguments in Whole Woman’s Health v Lakey on Wednesday, January 7, 2014.

Who decides

Selected to hear this case are judges Jennifer Walker Elrod, Catharina Haynes and Edward Prado, all appointees of George W. Bush. The chances of them handing down a majority decision that would strike down HB2 is highly unlikely from what we know of the political leanings of Judge Elrod and Judge Haynes and how they reacted the first time HB2 went through their court, but Judge Prado may yield a little bit of hope with his decision to not reconsider Roe v. Wade in 2004 and his considerably moderate track record in previous rulings. Regardless, most legal analysts expect HB2 to survive its third trip through the 5th Circuit (the court is, after all, one of the most conservative appellate courts in the country) and Whole Woman’s Health v. Lakey is anticipated to make it all the way to the Supreme Court.

For more information on why courts are key in the fight against this law, check out this video by the Center for American Progress. NARAL Pro-Choice Texas will be present in the courtroom taking notes and bringing you updated information on the case as quickly as we can.