Block #HB2: Austin Banner Drop For Texas Abortion Access

On Thursday activists in Austin, Texas performed a “banner drop” — tying a painted sheet to a highway overpass — above Interstate Highway 35 during a busy evening’s rush hour. The banner read, “Abortions Save Lives, Keep Clinics Open, Block #HB2.”

House Bill 2, or the Texas Omnibus Abortion Bill, places draconian restrictions on the ability of residents to access abortion. It’s already forced many clinics in the state to shut down through its unreasonable requirements such as hospital admitting privileges for doctors and holding clinics to the standards of surgical operating theaters, even if they only administer abortion with pills.

A lawsuit brought by Whole Women’s health clinics successfully blocked portions of the bill. Federal Court Judge Yeakel blocked the final portions of the bill, set to go into effect on September 1.

From RH Reality Check’s Andrea Grimes:

A federal judge blocked part of Texas’ omnibus anti-abortion law, HB 2, late on Friday, ruling that its restrictions on Texas abortion providers—requiring them to meet the standards of ambulatory surgical centers—are unconstitutional.

Without the court’s injunction, HB 2 could have reduced the number of Texas abortion providers to eight.

“The act’s ambulatory surgical center requirement places an unconstitutional undue burden on women throughout Texas,” ruled Judge Lee Yeakel, who also determined that the portion of the law that requires abortion-providing doctors to obtain hospital admitting privileges is unconstitutional as it applies to doctors in El Paso and the Rio Grande Valley; those doctors also brought claims against the state in a lawsuit filed this summer.

The state’s attorney general and Republican gubernatorial candidate Greg Abbott immediately filed an appeal against Yeakel’s ruling, only to be rebuffed by the Fifth Circuit. One clinic was even able to re-open.

But the bill returns to court on Friday, September 12 where many worry the victory for abortion access could come to an end.

Ian Millhiser, writing for ThinkProgress, calls it a “Disaster for Team Choice:”

The one silver lining facing advocates seeking to halt several provisions of a Texas law limiting access to abortion is that, when the United States Court of Appeals for the Fifth Circuit decides this case, their decision may not be unanimous. Judge Stephen Higginson, an Obama-appointee to the Fifth Circuit, is one of the three judges who will consider this case on Friday. So, when the panel of judges issues their opinion, Higginson might write a dissent arguing that Texas’s law is unconstitutional.

There’s little chance that this position will win over another member of the panel, however, as the other two judges who will hear the case are staunch conservatives.

Judge Jennifer Walker Elrod has twice voted to allow Texas to enforce the law restricting abortions, most recently when she voted to uphold a provision of the law requiring doctors who perform abortions to have admitting privileges in a nearby hospital. When Elrod was selected to hear that case, we described the three judges who were selected to hear it as a “nightmare federal appeals court panel” for pro-choice advocates. It is unlikely that her views on abortion have changed much since then.

The worst news for the lawyers challenging Texas’s law, however, may be the fact that Judge Jerry Smith is the third judge who will hear their case. In 2012, just hours after a lower court judge issued an order suspending funding cuts to Planned Parenthood, Smith issued a two sentence decision blocking that order. What made Smith’s action in this case unusual, however, is that he did so in a single-judge order, something the Federal Rules of Appellate Procedure only permit in “an exceptional case in which time requirements make that procedure impracticable.” It’s not clear what exceptional time constraints prevented Smith from consulting with two of his colleagues before issuing this order, as is the normal process in a federal appeals court.

HB2 has ties to ALEC and other anti-human corporate interests. The Fifth Circuit case means the courts once again have the opportunity to choose between human rights and inhumane right-wing politics.

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