What just happened in Texas?

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(c) Alexandra Phelan, 2014

Today has seen a new blow to Texan women’s reproductive health rights. A quick background of events for those not familiar:

  • House Bill 2: a Texas law that changes the definition of fetal viability to 20 weeks (drastically cutting back the time period of a woman’s right to seen an abortion: Roe v Wade set viability at ~28 weeks). In addition, House Bill 2 requires that a physician conducting abortions have admission rights to a hospital less than 30 miles away and blocks off-label use of two drugs, limiting women’s access to medication abortions to 49 days after the last menstrual period, rather than 63 days. These latter two provisions are the “Litigated Provisions”.

Timeline

  • June 2013: House Bill 2 passes the Texas House, and upon it being brought before the Senate, Senator Wendy Davis partakes in a marathon filibuster, defeating the Bill.
  • July 2013: Republican efforts don’t stop there, and a special session is held to pass House Bill 2 through the Senate. Governor Rick Perry signs it into law, to take effect 29 October 2013.
  • September 2013: Women’s health organizations (including Planned Parenthood) file a suit in the Federal Court to block the Litigated Provisions of House Bill 2 that violate women’s health rights.
  • 28 October 2013: Federal Court Judge Lee Yeakel strikes down the Litigated Provisions on the grounds that they were unconstitutional, placing an undue burden on women’s access to abortion. Discussion on this case can be found here.
  • 29 October 2013: Texas seeks an emergency temporary injunction from the Fifth Circuit Court of Appeal to block Judge Yeakel’s decision, and asks for a full appeal to be held in January.
  • 31 October 2013: Fifth Circuit Court of Appeal allows in part Texas’ emergency injunction, putting on hold Judge Yeakel’s permanent injunction, allowing the Litigated Provisions to come into effect with one exception: medical abortions allowable for women 50-63 days from their last menstrual period, where, due to a physical abnormality or preexisting condition, a surgical abortion is not a safe option. The Fifth Circuit agrees to hear the full appeal in January 2014. Nearly 20 clinics are forced to close around the State, as they are unable to meet the physician admissions requirements. More on this decision here.
  • 4 November 2013: Women’s health organizations file an emergency application to the US Supreme Court, seeking that Judge Yeakel’s injunction be reinstated until the full appeal is held. More here.
  • 19 November 2013: The US Supreme Court splits on idealogical grounds, refusing to grant the emergency application 5-4. The Texan laws stay in effect pending the Fifth Circuit Appeal.
  • 6 January 2014: Arguments presented to Fifth Circuit Court of Appeal.

And then flash forward to today, 28 March 2014, the Fifth Circuit Court of Appeal has handed down its ruling, reversing all of Judge Yeakel’s decision.

Given the geography of Texas, thousands of Texas women will now have virtually no access to safe and legal abortion services, and in the words of the American Medical Associations and the American College of Obstetricians and Gynecologists, upholding a law that “jeopardizes women’s health in Texas” that does “nothing to protect the health of women”.

This is an incredibly disappointing decision, with the three-judge panel giving Texas the complete go-ahead to violate fundamental human rights by severely restricting women’s health rights. The result of this decision means that both of the Litigated Provisions (requiring physicians to have admission privileges and limitations on medication abortions) come into effect on a permanent basis.

Just how permanent this is remains to be seen: there is still an option to appeal the decision to the US Supreme Court. However, given the 5-4 ideological split seen in the unsuccessful November 2013 appeal, it is not clear whether such an option would result in a decision that protects the fundamental liberties and rights of Texan women to health services.

However one would hope that the Supreme Court, as the United States’ bastion of protecting the liberties and freedoms guaranteed to Americans, when vested with the express jurisdiction to decide on the constitutionality of House Bill 2 (rather than simply on whether the requirements for an injunction have been met) would fulfill this role, not simply reinforcing the personal ideologies of the justices.

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