District Judge Enjoins Portions of Texas' Restrictive Abortion Law, HB 2

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The latest installment in the continuing saga of HB 2, Texas' restrictive abortion law, occurred late Friday with Judge Lee Yeakel enjoining the admitting privileges requirement and the ambultory-surgical-center requirement in his 21 page  opinion  in Whole Woman's Health Center v. Lakey.

Recall that a panel of the Fifth Circuit in March upheld the admitting privileges provision of controversial  Texas HB 2 passed despite a well-publicized filibuster by state senator Wendy Davis, after it had issued a stay of Judge Yeakel's decision enjoining the provision as unconstitutional. 

This new opinion considers the as-applied challenge to the admitting privileges provision combined with the the ambultory-surgical-center requirement. 

In considering the testimony and evidence in the bench trial, Judge Yeakel found that the "experts’ testimony substantially contradicted each other and, predictably, reached opposing conclusions," noting that this is "the nature of expert testimony."   But the judge did use some of that testimony, as well as carefully considering the parties' stipulations. 

The court concludes that the act’s ambulatory-surgical—center requirement, combined with the already in-effect admitting-privileges requirement, creates a brutally effective system of abortion regulation that reduces access to abortion clinics thereby creating a statewide burden for substantial numbers of Texas women. The obstacles erected for these women are more significant than the “incidental effect of making it more difficult or more expensive to procure an abortion.” [citing Casey].  The court concludes that the overall lack of practical access to abortion services  resulting from clinic closures throughout Texas as a result of House Bill 2 is compelling evidence of a substantial obstacle erected by the act.  

The judge also concluded "that the severity of the burden imposed by both requirements is not balanced by the weight of the interests underlying them."  And, perhaps most interestingly, the judge explicitly considered the legislative intent of HB2:

An abortion regulation is also violative of a woman’s right to an abortion if it was adopted with the purpose of erecting a substantial obstacle to a woman’s ability to choose a previability abortion. [citing Gonzales v Carhart]. Because the act’s two requirements have the effect of creating an undue burden, an additional finding that the act was passed with the purpose of erecting a substantial obstacle is not required in order to declare the act unconstitutional. However, the court  concludes, after examining the act and the context in which it operates, that the ambulatory-surgical- center requirement was intended to close existing licensed abortion clinics. The requirement’s  implementing rules specifically deny grandfathering or the granting of waivers to previously licensed  abortion providers. This is in contrast to the “frequent” granting of some sort of variance from the  standards which occur in the licensing of nearly three-quarters of all licensed ambulatory surgical  centers in Texas. Such disparate and arbitrary treatment, at a minimum, suggests that it was the intent of the State to reduce the number of providers licensed to perform abortions, thus creating a substantial obstacle for a woman seeking to access an abortion. This is particularly apparent in light of the dearth of credible evidence supporting the proposition that abortions performed in ambulatory  surgical centers have better patient health outcomes compared to clinics licensed under the previous regime.  

[emphasis added].

Thus, the judge enjoined the enforcement of HB2.  

The Attorney General of Texas is sure to appeal.