Yeakel Again Rules Against HB 2

Judge Yeakel

On Aug. 29, offering relief to pro-choice advocates and beleaguered abortion clinics on the brink of closure, U.S. District Judge Lee Yeakel struck down parts of Texas' abortion law, House Bill 2, finding the onerous reproductive health regulations unconstitutional. In his 21-page opinion issued late Friday afternoon, Yeakel ruled that the law would place an "undue burden on women" and "undeniably reduce meaningful access to abortion care for women throughout Texas." The state's actual goal, Yeakel pointedly concluded, is not, as it claims, to improve the health and safety of women, but to reduce the number of abortion clinics.

The existing provisions of HB 2, effective since last November, ban abortion after 20 weeks of pregnancy, force patients to follow outdated methods when undergoing pharmaceutical abortions, and require physicians to obtain admitting privileges at a hospital within 30 miles of the clinic where any procedure is performed. The final provision, which had been set to kick in on Sept. 1 – just two days after Yeakel's decision – mandates that clinics spend up to $3 million to comply with the same building standards as ambulatory surgical centers. Clinic administrators describe the requirements (such as widening hallways and constructing janitorial closets) as a medically unjustified attempt to eliminate abortion services; it appears Yeakel agrees. Without mincing words, the judge wrote that the ASC rule is "intended to close existing licensed abortion clinics." Reproductive health experts estimate that should the ASC rule take effect, fewer than 10 clinics would remain open to serve the entire state.

Abortion providers, represented by the national Center for Reproductive Rights and local law firm O'Connell & Soifer, filed suit in April to fight the ASC requirement, and challenged the admitting-privileges rule for two clinics in underserved areas – the Whole Woman's Health Clinic of McAl­len and Reproductive Services of El Paso. Yeakel directed that these two clinics should be exempt from the rule, especially considering the substantial socioeconomic barriers to abortion access for the underserved, disadvantaged border communities. Providers plan to reopen the McAllen center soon.

The ASC requirement, declared Yeakel, "burdens Texas women in a way incompatible with the principles of personal freedom and privacy protected by the United States Constitution for the 40 years since Roe v. Wade." Many of the building standards required by the act, he continued, have "such a tangential relationship to patient safety in the context of abortion as to be nearly arbitrary."

Pro-choice advocates protest HB 2 at the Capitol last summer. (Photo by John Anderson)

The federal judge, appointed by President George W. Bush, critiqued not only HB 2's particular provisions but its cumulative impact within already-restrictive Texas abortion regulations, which mandate a 24-hour waiting period and ultrasound test before abortion. These "substantial obstacles," wrote Yeakel, have reached a "tipping point" that threatens the constitutionally protected right to an abortion.

Furthermore, the court concluded the law's goal of "improving women's health" – continually argued by anti-abortion advocates and the state in defense of the HB 2 – is unlikely to be achieved by these additional restrictions. Even if the remaining health centers (at most eight clinics serving up to 10,000 women annually) could meet the demand imposed by clinics closed as a result of HB 2, the court concluded that the practical effect on Texas women "would operate for a significant number of women in Texas just as drastically as a complete ban on abortion."

And the impact of these provisions, all together, "create an impermissible obstacle as applied to all women seeking a pre-viability abortion," wrote Yeakel.

In his ruling, Yeakel persistently agreed with plaintiff arguments and called the state's defense "misplaced" and "disingenuous." He questioned the validity and reliability of state defendant testimony, finding their allegations of incomplete abortion complication reporting "largely unfounded" and "without a reliable basis."

He also renewed his criticism of the state's attempt to "conceal" its involvement with Vincent Rue, a discredited anti-abortion advocate who helped draft defendant testimony as a paid consultant with the A.G.'s office: "the level of input exerted by Rue undermines the appearance of objectivity and reliability of the experts' opinions," he wrote. "Further, the court is dismayed by the considerable efforts the state took to obscure Rue's level of involvement with the experts' contributions."

As expected, following the decision, Texas Attorney General and gubernatorial candidate Greg Abbott swiftly appealed, requesting the 5th Circuit Court immediately enforce part of HB 2. The state argued the judge failed to take into account binding precedent and also claimed it is "suffering immediate injury" from Yeakel's ruling. However, the appellate court criticized Abbott for tardiness, denied his motion, and instead scheduled oral arguments for next Friday, Sept. 12.

The next steps could eventually mirror the outcome of the first case against HB 2, filed by abortion providers last year. Yeakel previously ruled the hospital admitting privileges-rule unconstitutional; the state quickly appealed to a three-judge panel on the conservative 5th Circuit, which has largely upheld the state's draconian regulation of reproductive health, including HB 2. Providers await the 5th Circuit's decision whether to rehear the initial case. For now, Yeakel has spared roughly 14 clinics from closing their doors and protected hundreds of thousands of women from facing, as he described it, "a complete ban on abortion."