Doubling Down: Supreme Court refuses to hear Oklahoma’s anti-abortion arguments for transvaginal ultrasounds

Doonesbury 3-14

Part of Trudeau’s 2012 comic series on the transvaginal ultrasound legislation in Texas (but equally applicable in the context of this Oklahoma case) – Universal Uclick (c) 2012 G.B. Trudeau

For the second time in as many weeks, the US Supreme Court has rejected Oklahoma’s request that the court review an Oklahoma Supreme Court’s decision invalidating anti-abortion laws.

This time, the law in question required women to undergo a “narrated ultrasound” before being allowed to proceed with an abortion. The original law (the “Oklahoma Ultrasound Act”, or HB 2780) patronisingly determined that

“[i]n order for the woman to make an informed decision, at least one (1) hour prior to a woman having any part of an abortion performed or induced… the physician [performing the abortion] shall

1. Perform an obstetric ultrasound on the pregnant woman, using either a vaginal transducer or an abdominal transducer, whichever would display the embryo or fetus more clearly;

2. Provide a simultaneous explanation of what the ultrasound is depicting;

3. Display the ultrasound images so that the pregnant woman may view them;

4. Provide a medical description of the ultrasound images, which shall include the dimensions of the embryo or fetus, the presence of cardiac activity, if present and viewable, and the presence of external members and internal organs, if present and viewable”

When read like this, it is clear that the experience intended by Oklahoma was to be a traumatic one; an experience aimed at manipulating or shaming a woman out of making decisions about her own health and body. From a statutory interpretation perspective, the first clause is particularly interesting – making a decision between a standard ultrasound or transvaginal ultrasound (an ultrasound on a stick inserted up the vaginal canal to the cervix) is based on clarity of viewing the embryo or fetus. There is no space in the Act’s provisions for a physician to take into account the necessity of the procedure, nor in deciding which ultrasound to go for, the wellbeing, comfort or desires of the woman (probably even less so if you take a purposive, rather than purely constructional interpretation approach). As transvaginal ultrasounds tend to provide higher quality resolutions in early stage pregnancies, the result is clear: you want an abortion in Oklahoma, you’ll have to have a physician stick an ultrasound up your vagina, while they narrate to you a story of the gestating embryo or fetus. Now, there’s nothing inherently wrong with transvaginal ultrasounds – they are an incredibly useful tool in women’s reproductive health, including in the abortion setting. However, having a law dictate that a woman must go through with what is an invasive procedure under the patronising guise of enabling them to make an “informed choice” is a completely different matter, and warrants fierce opposition. This is even more so given that abortion and reproductive health procedures are constitutionally protected rights.

In December 2012, the Oklahoma Supreme Court upheld a lower court’s ruling that this patronising law was invalid as it violated women’s constitutional rights. The Oklahoma Supreme Court ruling is delightfully short, stating simply that the law is “facially unconstitutional”. In particular, the Oklahoma Supreme Court upheld the lower court’s finding that the law was in violation of:

  • Article V-59 of the Oklahoma Constitution, which fundamentally is about upholding the Rule of Law. This Article prohibits a legislature from creating a “special law”; that is, a law just for one particular subset of the population. Oklahoma therefore exceeded the powers given to it by the Constitution by passing a law that targeted only female patients, doctors and sonographers where women were seeking an abortion, not all patients, all doctors, and all sonographers in any medical situation.
  • Article V-46, which in a similar vein, provides that the legislature may not create a special law that grants a right to take a civil action (ie take a matter to court) only to a particular class of people. In this case, this related to the rights of a woman’s family, doctors, and the Attorney-General to seek an injunction against abortion providers who violate the law, and to seek damages from an abortion provider knowingly or recklessly violating the requirement to conduct a narrated ultrasound.

So after being struck down as unconstitutional by the Oklahoma District Court, then the Oklahoma Supreme Court, Oklahoma sought to appeal these decision at the US Supreme Court. Tuesday’s denial however means that the last door has closed on this law. With two decisions in the last two weeks, Oklahoma women can breathe a sigh of relief that these laws, putting women’s physical and mental health at risk, have been relegated back to the dark ages from which they came.

Key Legal Docs

US Supreme Court ruling

Here’s a link to the US Supreme Court’s refusal to hear the case by elegantly listing simply the case name under “Certiorari Denied” at the bottom of page 1.

State Supreme Court ruling

Here’s a link to the short and sweet Oklahoma Supreme Court ruling (Nova Health Systems v Pruitt 2012 OK 103 (292 P.3d 29)).

State District Court ruling

Here’s a link to the original Oklahoma District Court ruling (Nova Health Systems et al v Pruitt et al Case No. CV-2010-533) granting the permanent injunction (this was tricky to find!).

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Improvidently Granted: Surprise Early Victory from US Supreme Court for Oklahoma Women’s Rights

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Used under creative commons licence, copyright to image held by Mark Fischer on flickr @ http://www.flickr.com/photos/fischerfotos/7526267232/

In a surprising early turn of events, the US Supreme Court has dismissed Oklahoma’s appeal against a December 2012 ruling by the Oklahoma Supreme Court which struck down a ban on medication abortions as unconstitutional.

As you may recall, on Tuesday, the Oklahoma Supreme Court responded to questions posed to it by the US Supreme Court, seeking clarification on its interpretation of the impact of the law on Oklahoma women. Following this, it was expected that the case would then proceed to securing a place on the SCOTUS hearing docket this or next term.

This afternoon however, SCOTUS has dismissed Oklahoma’s case, stating in one single, elegant line that

“[t]he writ of certiorari is dismissed as improvidently granted”.

This effectively means that following a reading of Oklahoma’s answers, the US Supreme Court has changed its mind on granting Oklahoma the right to appeal, stating that it should not have accepted the case. Oklahoma’s case is therefore dismissed, and the original Supreme Court of Oklahoma’s ruling that the 2011 Oklhamoma law banning off-label use of abortion drugs was unconstitutional is upheld.

Given the legal events of the last two weeks, this is a fantastic win for women’s reproductive health and protection of Oklahoma women’s constitutionally protected rights.

Today’s US Supreme Court ruling in full (all one line of it) can be found here.

A Taste of Their Own Medicine: Appealing Texas to the US Supreme Court

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Used under creative commons licence, copyright to image held by Mark Fischer on flickr @ http://www.flickr.com/photos/fischerfotos/7432028860/

Sometimes, the consequences of a law on individuals can be too abstract. The implications may be set before a court by lawyers, but when a decision is made that affects not only a woman’s rights but also the tangible, physical sense of control over her own body, its consequences are immediate.

On Friday, more than forty women were turned away from previously scheduled abortions at Whole Women’s Health clinics in Texas, and more than one hundred women have had their appointments cancelled at a Planned Parenthood clinic in Austin. Only a few days earlier, a Federal Court Judge had struck down parts of a Texas Law that required physicians performing abortions to conform to strict admission privileges requirements as unconstitutional.  On Halloween however, the Fifth Circuit Court of Appeal agreed to hear an appeal by Texas at a later date, while also putting the Federal Court Judge’s decision on hold. As a result, come Friday morning, the admission privileges requirement (even though deemed unconstitutional by a Federal Court Judge) came into effect, denying Texas women in areas unable to conform to the strict requirements their reproductive rights, and putting their health and safety at risk.

While the full appeal is yet to be heard, and the current stay of the decision only temporary until then, there is a risk that the Court of Appeal, may permanently uphold the constitutionality of the Texan abortion law reforms.

In a proactive response, the women’s health providers who filed the original suit have lodged an emergency application with the US Supreme Court to reinstate the Federal Court’s decision to strike down the Texan laws. In effect, they’ve given the Texas Attorney-General a taste of his own medicine.

According to the Center for Reproductive Rights, the Supreme Court has given Texas until next Monday (11 November) to respond to the appeal. Until then, the law will remain in place. Here’s hoping that even in granting a temporary decision, the Supreme Court recognises that the mere risk of violating Texan women’s constitutionally protected rights, as well as the risk to their health and access to essential services, far outweigh Texas’ clearly political position on this matter.

Halloween descends: Texas abortion law reinstated temporarily

In a fitting All Hallows’ Eve turn of events, the Texas Attorney-General’s emergency motion to reinstate the controversial abortion law following Monday’s District Court decision has been granted. Feel like banging your head against a table? Here’s the link to the decision, or alternatively read on.

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© Alexandra Phelan (2013)

Last night, the United States Fifth Circuit District Court of Appeal pressed pause on Justice Yeakel’s decision that requiring physicians performing abortions to have admission privileges placed undue burden on women seeking abortions, and was unconstitutional. As a result of granting the emergency motion and staying the District Court’s decision, the Texas law at the centre of these legal debates has come into effect. Like a temporary injunction, the Court of Appeal will hear the appeal in full at a later date, and come to a permanent decision on the law.  If you’re legally minded, how the Court of Appeal came to its decision is discussed in more detail below. Regardless of the outcome of that decision, it is likely that, in the words of Texas Attorney-General Greg Abbott (a leading Republican candidate for governor and the proponent of the law) “this case is going all the way to the United States Supreme Court”.

According to the Planned Parenthood Federation of America, one-third of Texas health centres providing abortions will be forced to cease providing them today. Planned Parenthood, who has 13 clinics in Texas, has already been forced to stop providing abortions at four of its clinics today, as they have been unable to find physicians satisfying the law’s required admission privileges.

In a positive turn however, the District Court of Appeal did not grant the emergency motion staying Judge Yeakel’s decision on ensuring that pregnant women who would not be suitable for surgical abortion can still access medication abortions up to 63 days from her last menstrual period. That being said, the fact that the District Court of Appeal describes these women as “mothers” demonstrates the unfortunate perspective from which the court approached this decision.

To stay or not to stay? How the Court of Appeal came to its decision

The emergency motion lodged by Texas requested that the Fifth District Court of Appeal stay the District Court’s Monday decision as if it had not been made, therefore allowing the Texas law to come into effect on 1 November 2013.

As is the case with temporary injunctions pending a full trial, a decision on a “stay pending appeal” is based on a series of tests to determine whether the stay should be temporarily granted, with a permanent decision coming at a later date. As a result, none of the actual facts of the case, “the merits”, are decided upon.

The Fifth District Court of Appeal considered four factors in its decision:

  1. Whether Texas made a strong showing that it was likely to succeed on the merits (i.e. is it likely to win at the later trial);
  2. Whether Texas will be irreparably injured if a stay is not granted;
  3. Whether issuance of the stay will substantially injure the other parties interested in the proceeding; and
  4. Where the public interest lies.

As you can see in the latter three points, in a case like this, compared to a purely commercial situation, it’s pretty difficult for the merits of the case to not be assessed to some degree. Unfortunately, as a woman’s health and human rights advocate, it’s hard not to read the Court of Appeal’s ruling as being essentially a decision on the merits, including the statement that “the district court’s finding … is not supported by the evidence, and in any event, “a legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data”. That is, legislators are completely entitled to make laws that are not based on any evidence, even if they justify the laws as being based on rational speculation. If you think that sounds a bit oxymoronic, you’d be right. Perhaps its the scientist in me, or the public health policy advocate, but when it comes to making decisions about women’s health, actual medical or other scientific evidence is critical in rationalising legislative restrictions. From a legal standpoint however, the sovereignty of the legislature is a well established element of democratic representation, and here, the Court of Appeal has made it clear that the decisions of the Texas legislature, even if based on evidence found by a court to be wanting, reigns supreme.

Fundamentally (see what I did there?), Texas pushed the argument that the laws these laws were crafted “to protect the health and safety of Texas women”. How delightfully paternalistic. While abortions may require extra protections to ensure they are carried out in a safe manner, that is due to their history as illegal and hidden procedures, carried out in unsanitary and unsafe conditions. It is the illegality of abortion that has caused these extra protections. In contemporary society, with legalised and widely available services for women’s reproductive health, abortion may be treated as any other medical procedure. As a result, the scrutiny of physicians performing abortions should be no more and no less than any other surgery or drug administration. It is the fact that abortions are singled out in these laws that demonstrates that they are discriminatory against women and in violation of their constitutionally protected reproductive rights.

The District Court of Appeal’s finding that the the State does have a case to make on the merits seems  superficial. However, such conclusions are often the case with temporary measures by courts, with full analysis of the merits taking place at a later date. The problem however, is the injury experienced by women in Texas per element three the four stage test set out by the Court above. How the Court came to the conclusion that having to travel 240 km (150 miles) to obtain an abortion is not an undue burden is beyond me. When the Court proposes that women drive (or bus, or train, or bicycle, or walk) to Corpus Christi, 160 miles away from Rio Grande City, I can completely understand why women cross the border to Mexico. If Texas legislators truly cared about women’s health and safety, they would ensure that all Texan women, regardless of race or whether they live in rural or urban areas, have access to abortions. It is quite clear that none of these laws are about women’s health, and the Court of Appeal’s failure to see through this, and failure to adequately weigh the detriment to Texas women in its decision to stay, is disappointing.

Worth watching

Check out Amy Hagstrom Miller on the Rachel Maddow show last night talking about the ruling.

Oklahoma! Questions Answered – SCOTUS Repro Rights Case Case Can Proceed

Oklahoma Capitol Seal (2013) by mrlaugh on flickr at: www.flickr.com/photos/mrlaugh/9529159402/

Used under creative commons licence, copyright to image held by mrlaugh on flickr @ http://www.flickr.com/photos/mrlaugh/9529159402/

It’s been a busy week in the US for the law and women’s reproductive rights. Following yesterday’s Federal Court decision in Texas, this morning the Oklahoma Supreme Court has issued its answers to questions submitted to it from the US Supreme Court.

These questions form part of a case that has been appealed to the US Supreme Court from Oklahoma’s top court, Cline et al v Oklahoma Coalition for Reproductive Justice. The US Supreme Court paused hearing the proceedings until its questions had been answered by the Oklahoma Supreme Court.

In 2011, Oklahoma passed a law banning the off-label use of misoprostol (Cytotec), mifepristone (RU-486) and methotrexate, for the termination of a woman’s pregnancy (a more detailed description of off-label use of RU-486 is available in a previous post). The law did not ban off-label use of these drugs in other circumstances, reflecting that the purpose of the laws was to target abortion specifically and therefore denying women specifically the right to medical advances and scientific evidence in their medical care. This law was challenged by the Oklahoma Coalition for Reproductive Justice on the grounds that the law was in violation of the rights of women to equal protection of the laws, privacy, bodily integrity and freedom of speech as protected under the Oklahoma Constitution.

Prior to the law, Oklahoma did not differentiate between medication and surgical abortions. Similar to the case in Texas yesterday, the law required doctors to use the drugs only in accordance with the protocol set out by the US Food and Drug Administration. For a number of reasons, such protocols are not necessarily the most safe and effective uses of a medication, leading doctors to examine medical literature and scientific evidence for the best use of the medications, “off-label use”. Doing so is not illegal and is common practice in the United States allowing for best medical practice in the face of scientific advances. An example of such advances is medication abortions, which can be performed earlier in pregnancy than surgical abortions, is less invasive and more private. There are also a number of medical reasons why a medication abortion would be more advantageous than a surgical abortion for certain women.

According to the Plaintiffs’ petition to the Oklahoma County District Court in 2011, approximately 2/3 of patients having a first-trimester abortion choose medication abortions. Such abortions would have been banned under the effect of the Oklahoma law.

Events leading to Supreme Court

In December 2011, the Oklahoma County District Court issued a preliminary injunction preventing the enforcement of this new law. In May 2012, this was converted into a permanent injunction, recognising the rights to bodily integrity and the right to terminate a pregnancy as protected under the Oklahoma Constitution.  The Oklahoma Commissioner of health, Terry Cline, and others, appealed the decision to the Oklahoma Supreme Court. In December 2012, the Court upheld the District Court’s decision, finding that the law was unconstitutional. In March of this year, the Oklahoma Attorney General filed a petition for certiorari with the US Supreme Court, seeking judicial review of the Oklahoma Supreme Court’s ruling.

The US Supreme Court allowed the petition, meaning that it would hear the case and conduct a judicial review of the Oklahoma Court’s ruling, however before doing so, required that two questions of law must be answered by the Oklahoma Supreme Court.

Question 1: Does the law prohibit the use of misoprostol to induce abortions, including its use in conjunction with RU486 according to an FDA protocol?

That is, are the methods of use set out by the FDA the real issue here, or is it clearly a way of banning abortions regardless of FDA approvals.

Question 2: Does the law prohibit the use of methotrexate to treat ectopic pregnancies?

That is, when a woman has a pregnancy where the embryo implants outside of the womb, which is in most cases not viable and dangerous to the mother, are doctors prohibited from using methotrexate terminate the growth of the developing embryo.

The Oklahoma Supreme Court answered both questions with a resounding yes. Answering these questions was a matter of statutory interpretation, and therefore legal rather than factual questions. For law students, the Oklahoma Supreme Court’s responses provide an interesting example of how a court proceeds with statutory interpretation, but that’s an examination for another day. The Court concluded that the law “effectively bans all medication abortions”, and made a very clear statement on the poor attempt by the legislature in Oklahoma to supersede their political beliefs over the training and experience of medical professionals, stating that:

“[t]he role of the physician is to heal the sick and the injured, and physicians are required to undergo rigorous training to develop the required knowledge and experience to perform that role well”.

Citing their original finding, the Court reiterated that the law’s restrictions on the use of these drugs when used for abortion is

“so completely at odds with the standard that governs the practice of medicine that it can serve no purpose other than to prevent women from obtaining abortions and to publish and discriminate against those who do”.

Now that the the Oklahoma Supreme Court has responded to the US Supreme Court’s questions, it is likely to proceed to be set for argument and decided in the current US Supreme Court Term. According to SCOTUS blog, there is a possibility that the US Supreme Court will seek formal responses to the Oklahoma Supreme Court’s answers from the plaintiffs and respondents.

Couple this case with yesterday’s Texas case (and the announcement that it will be appealed to the US Court of Appeals in the Fifth Circuit) and we have a positive track of the judiciary upholding women’s reproductive rights that we can only hope will be affirmed by these higher courts.

Good but not Great: Parts of Texas Abortion Law Declared Unconstitutional

Texas Legislature 2013

Used under creative commons licence, copyright to image held by sparkleplen_t on flickr @ http://www.flickr.com/photos/98759094@N00/9195467920/

Update 2 30 Oct 2013 @11.25am: The 5th Circuit Court of Appeal did not grant Texas’s emergency motion to block Judge Yeakel’s decision. As a result, Judge Yeakel’s permanent injunction preventing the new abortion laws discussed below from coming into effect remains in effect, allowing clinics to stay open and doctors to administer medical abortions in certain cases.

Update 29 Oct 2013 @1.52pm: Overnight, Texas asked for an emergency order from the 5th Circuit Court of Appeal to block Judge Yeakel’s decision. The struck out provisions would have otherwise gone into effect today. Texas has asked the Court of Appeal to decide on an emergency temporary injunction today, and hear the full appeal in January.

Less than 2 hours ago, a Federal Court Judge in Texas struck down two key parts of the Texas Abortion Law amended by “House Bill 2” on the grounds that they placed undue burden on women seeking an abortion. The law is the same one made famous by Democrat Senator Wendy Davis’ marathon filibuster efforts when House Bill 2 was brought before the Texas Senate in June this year.  House Bill 2 was later signed into law by Governor Rick Perry after passing both the Texas House and Senate in a special session, however women’s health organisations, including Planned Parenthood, launched an appeal to the law seeking that it be declared unconstitutional by the court. House Bill 2 is scheduled to take effect on 29 October 2013.

The lay of the land

In Texas, a woman has a right to terminate her pregnancy before it is viable. A law will be unconstitutional if it imposes an undue burden on a woman’s decision to abort a fetus before it is viable. An undue burden includes any legislation that has the purpose or the effect of placing a substantial obstacle in the path of a woman seeking an abortion for a nonviable fetus. Where a fetus is viable, legislation may be made restricting the right to an abortion, except where an abortion is necessary for the preservation of the life or health of the mother. In the seminal (or perhaps ovarial?) case on this issue, Roe v Wade, fetal viability “is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks”. Part of House Bill 2 changed the definition of fetal viability to 20 weeks, drastically cutting back the time period of a Texan woman’s right to an abortion for a nonviable fetus.

This change to the definition of fetal viability was not the central point of the court’s decision – rather, two other parts of House Bill 2 were challenged on the grounds that they were unconstitutional.

Judge Lee Yeakel of the Federal Court for the Western District of Texas (see a primer on US District Courts here) held that two parts of House Bill 2 were unconstitutional, as they placed undue burden on women seeking an abortion of a nonviable fetus.

In summary, Judge Yeakel held that:

  • the requirement that doctors performing abortions have admission privileges was without a rational basis and placed a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus; and
  • the restrictions on medical abortions place a similar obstacle in cases where a physician finds such an abortion necessary.

The findings of the Court on these two points are discussed in further detail below.

Admission privileges requirement

Admission privileges are the ability of a doctor to admit a patient to a particular hospital for medical treatment. Typically, a doctor will have admission privileges where they are on a hospital’s medical staff, however admission privileges may also be given to external doctors to admit patients to a hospital.

House Bill 2 required that a physician performing an abortion must have admission privileges at a hospital with obstetric or gynaecological health care services less than 30 miles away from where the abortion is performed. If a physician performs an abortion contrary to these requirements, they are liable for a Class A misdemeanour, punishable by a fine up to $4,000. As a result, doctors working in an abortion clinic in a rural area or any area more than 30 miles from a gynaecological hospital where they have admission privileges would be criminally liable under the House Bill 2.

Texas argued that the admission privileges requirement was a necessary part of protecting the health of women, as a physician with admission privileges will be in a better position to ensure continuity of care at a hospital in the case of patient complications. In addition, Texas argued that this would also decrease the likelihood of medical errors in the patient transfer process from abortion provider to hospital. Texas failed to provide any evidence supporting a correlation between medical errors, patient transfers and a physician’s “admission privilege” status. The Court destroyed this position rather logically – pointing out that admission privileges have nothing to do with a patient when they turn up at a hospital for emergency care, and that by law a hospital cannot refuse to provide emergency care. In addition, there was no evidence that admission privileges affected a patients quality of care in an emergency room. As a result, the Court found that there was no rational basis of imposing this requirement, and as such a requirement would leave at least 24 counties in the Rio Grande Valley without an abortion provider who could satisfy it, women in those regions would face a substantial obstacle in accessing abortion services.  The outcome: the admission privileges requirement places an undue burden on Texan women seeking to exercise their Constitutional right to an abortion before fetal viability, and as a result, is unconstitutional and struck out.

Medication abortion

A medication abortion typically requires the administration of two drugs. The first, mifepristone, or RU-486, acts by preventing a fertilised egg from attaching, or an embryo from staying attached, to the uterine lining. Misoprostol acts to contract to uterus and expel the embryo and uterine contents. These drugs are an alternative to surgical abortions, or dilation and curettage.  The FDA has approved the use of these drugs to the first 49 days after a woman’s last menstrual period. The American College of Obstetricians and Gynecologists has endorsed the use of these drugs in a varied manner (“off-label”) and at lower doses, resulting in reduced doctor visits and side effects while also extending the period that RU-486 can safely be used up to 63 days after a woman’s last menstrual period.

House Bill 2 amended Texan safety laws to restrict the administration of these drugs to the FDA protocol, while allowing the off-label dosages. In Court, Texas conceded that the mixed FDA/off-label protocol required by the law was completely untested. The Plaintiffs argued that the FDA protocol required by House Bill 2 is not medically necessary and the off-label protocol, taken as a whole to include administration method and dosage, is the safest and most widely used use of RU-486. In addition, the FDA approach prevents medication abortions from 50 – 63 days, leaving women with only surgical options to abortion. The Court held that the differences between the off-label and FDA protocol may on their own be incidental, but as a totality, such as doctors visits plus side effects plus cost, but in totality may become an undue burden, however this was not satisfied in this situation. The Court also was not satisfied by the argument of a “preferred” option of medication versus surgical abortions, stating that “[i]ndividuals do not have a constitutional right to a preferred medical option, so long as a safe, medically accepted, and actual alternative exist”. For the Court, surgical abortions satisfy this.

However (and it’s a big however!) where a medication abortion is the only safe and medically sound option for women with particular physical abnormalities or preexisting conditions, House Bill 2 places a substantial obstacle in the path of such women seeking an abortion. Even though the Attorney-General of Texas stated that they wouldn’t prosecute a doctor performing such an abortion, “a promise not to prosecute from the Attorney General is not binding”.

As a result, the Court held that the medication abortion provisions of House Bill 2 placed an undue burden on those women for whom surgical abortion is, in the medical opinion of their physician, a significant health risk during a pregnancy from 50 to 63 days after their last menstrual period.

Conclusions

The findings of the Court and Judge Yeakel are generally good outcomes. As a result of this decision, 1/3 of Texas abortion clinics that would otherwise have likely had to close will not, and safe, medication abortions are available for women whose health would otherwise be put at risk by a surgical abortion.

Unfortunately, the 20 week viability definition still remains on foot. In addition, women must fall within a very specific category to have access to medication abortions after 49 weeks, which are safe, effective and more private than surgical options.

In the words of Nancy Northup from the Centre for Reproductive Rights, “[p]oliticians, not doctors, pushed for both of these unconstitutional restrictions – despite the best medical standards for women’s health care”.

The Texas Attorney General is expected to file an appeal of Judge Yeakel’s order to the 5th Circuit Court of Appeal.

Regardless of whether that occurs, there is more work to do in Texas: access to safe abortion options are a reproductive right, and an essential element of access to essential healthcare for women.

An Aussie Primer on US District & Circuit Courts

From the US Government US Courts.

The locations of the 11 geographic Circuit Courts

In the United States, District Courts are the trial courts for federal jurisdiction cases in a particular district area. For example, ND Ohio in case citations refers to the trial court vested with US federal jurisdiction for the Northern district of the state of Ohio.

The appeal courts for District Courts are also grouped geographically. For example, 6th Cir. in case citations refers to the US Court of Appeals for the Sixth Circuit, the federal court with appellate jurisdiction over nine District Courts including ND Ohio.

In total, there are thirteen US Courts of Appeals (11 numbered circuits, a DC circuit and the Federal Circuit, which has subject matter, rather than geographic, jurisdiction, including exclusive jurisdiction for tribunal appeals).

One way of comparing these courts to the Australian system is to imagine District Courts as the trial division of State Supreme Courts when exercising federal jurisdiction, and the Circuit Courts as the State Supreme Court Court of Appeal exercising federal jurisdiction.