Texas District Judge Declares Portions of HB 2 Restricting Abortion Unconstitutional

In his opinion in Planned Parenthood of Greater Texas v. Abbott, Judge Lee Yeakel has enjoined portions of Texas HB 2, passed in July (despite a well-publicized filibuster by state senator Wendy Davis) and slated to become effective October 29, 2013.

 The judge found unconstitutional the "admitting privileges provision" that provided:

A physician performing or inducing an abortion:
(1) must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that:
(A) is located not further than 30 miles from the location at which the abortion is performed or induced; and
(B) provides obstetrical or gynecological health care services

He concluded that the provision placed a substantial obstacle in the path of a woman seeking an abortion and failed the rational basis test.  As to the substantial obstacle, the judge noted that hospital admitting privileges for physicians performing abortions can be difficult to obtain; for example a physician performing low-risk abortions may simply not have sufficient surgeries to qualify.  Moreover, many physicians are not within the 30 mile limit.  Regarding a rational relationship, the judge found that hospital emergency rooms admitting a patient and hospitals subsequently treating her do not disfavor a patient whose physician does not have admitting privileges.

Judge Yeakel did not declare unconstitutional HB 2's revision of physician prescription of abortion-inducing medications such as RU-486.  HB 2 essentially mandates following the FDA protocol, a protocol that is not usually followed and about which there is substantial disagreement.  Judge Yeakel, however, found that HB 2 did not impose an undue burden because the physician could perform a surgical abortion.  An exception, however, must be added if the physician determines that the health or life of the woman is at stake.

Texas is reportedly already appealing the decision.  It is not the first time that Judge Lee (Earl Leroy) Yeakel has rendered an opinion declaring portions of a Texas statute restricting abortion unconstitutional and been appealed.  Last year in Planned Parenthood Ass'n of Hidalgo Cty. v. Seuhs, a panel of the Fifth Circuit reversed Judge Yeakel's preliminary injunction involving a Texas regulation that expanded the Texas Women's Health Program prohibition of funding for health care not merely to abortions, but to any organization affiliated with abortion.

 UPDATE: FIFTH CIRCUIT STAY