A Huge Abortion Win in Texas. But Will It Last?

The law, lawyers, and the court.
Sept. 2 2014 5:35 PM

A Huge Abortion Win in Texas

But will it last?

Photo by Jon Herskovitz/Reuters
Abortion rights activists protest outside a U.S. federal court in Austin, Texas, on Aug. 4, 2014. Will the most recent abortion victory in Texas get overturned by a higher court?

Photo by Jon Herskovitz/Reuters

Late Friday, after many of us checked out for the long weekend, a judge in Texas blocked the state from shutting down most of its abortion clinics. Judge Lee Yeakel struck down the state’s “brutally effective system of abortion regulation,” as he put it, saying it was not likely to improve women’s health, would impact poor women the most, and “would operate for a significant number of women in Texas just as drastically as a complete ban on abortion.” The judge was clear and convincing on these essential points. But his ruling, as well as another one over the weekend that’s keeping clinics open in Louisiana, may well be in danger on appeal.

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

Texas passed the collection of abortion restrictions in House Bill 2 a year ago, weeks after the famous filibuster by Wendy Davis (the state senator who is now running for governor) in her pink tennis shoes. The law has four parts. Two provisions that have already gone into effect ban abortion after 20 weeks and ban doctors from doing medical abortions by telemedicine. A third requires abortion providers to have admitting privileges at a local hospital. That one, which went into effect in March, was a big factor in reducing the number of clinics in Texas from 44 to 19 in the last three years. The fourth and final provision of the 2013 law, which would have gone into effect Monday, required all clinics to be outfitted as ambulatory surgical centers.

That means clinics have to come up with the money—between $1 million and $1.5 million each, Yeakel said—to widen hallways so patients can be carried out on stretchers, and provide large and expensively equipped recovery rooms. The surgical center requirements (like the ones about admitting privileges) are an example of far-reaching regulations that are enacted in the name of protecting women’s health and result in shutting down clinics. In refusing to go for the state’s justifications, Yeakel, who is a George W. Bush appointee, is sticking to his guns, to use a Texas metaphor. He tried to block the rule about admitting privileges last fall, only to be overruled by the U.S. Court of Appeals for the 5th Circuit. Now he is back at it, this time blocking the required retrofitting. (Yeakel also stopped the admitting privileges requirement from applying to two clinics, one in the border city of McAllen, and the other in western El Paso.)

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At trial, lawyers for Texas argued that requiring clinics to ramp up to surgical center status would make patients safer. It sounds reasonable enough, and states usually have lots of leeway to regulate the practice of medicine. But Yeakel found that the “severity of the burden” to women seeking abortions “is not balanced by the weight of the interests underlying them.” Money quote:

The great weight of the evidence demonstrates that, before the act’s passage, abortion in Texas was extremely safe with particularly low rates of serious complications and virtually no deaths occurring on account of the procedure. Giving appropriate weight to the experts’ conflicting testimony, the court concludes that concerns over incomplete complication reporting and underestimated complication rates are largely unfounded and are without a reliable basis.

Underlying Yeakel’s finding is a fight among expert witnesses that Texas deserved to lose. Yeakel called out four of the state’s witnesses over the behind-the-scenes “control” exerted by Vincent Rue. That’s because Rue, who holds a doctorate in family relations from the University of North Carolina, but not a medical degree, has been discredited by other judges for decades. Among other things, he’s a leading proponent of the disputed claim that women suffer harm from “post-abortion syndrome.” Texas has paid Rue thousands, yet other witnesses tried to mask his role in the case, denying that he helped draft documents. Yeakel expressed his dismay at “the considerable efforts the State took to obscure Rue’s level of involvement with the experts’ contributions.”

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