After losing at the Legislature, opponents of Texas’ new abortion regulations are preparing for round two — a court challenge modeled on lawsuits that have blocked, at least temporarily, similar laws in other states.
At least 18 other states have enacted portions of Texas’ four-part law in recent years, and all four provisions have been successfully challenged in federal and state courts, inspiring Democrats and like-minded organizations in a fight that could keep Texas in litigation for months, if not years.
Many of those court victories are preliminary, however, and abortion opponents will have ample opportunity to try to reverse earlier setbacks in a still-developing area of law.
“Texas is willing to wade into areas of (abortion) law where challenges are being filed, and so far the courts are not looking favorably on these,” said Janet Crepps, senior counsel for the Center for Reproductive Rights, which has filed many of the lawsuits seeking to overturn laws in other states.
“But a lot of those challenges aren’t final yet,” Crepps said.
Gov. Rick Perry signed House Bill 2 into law Thursday, and most of the measure’s provisions are due to take effect in October.A lawsuit will seek to block its enforcement, state Democrats have vowed, but no challenge had been filed by Friday.
Abortion opponents have long used state laws to push the boundaries of Roe v. Wade, the 1973 U.S. Supreme Court decision that established the constitutional right to an abortion. Those efforts have spiked in recent years, leading to heightened regulations and restrictions designed to reduce the number of abortions and, perhaps, lay the legal groundwork to overturn or limit Roe.
The toughest restrictions have been enacted in North Dakota, which would prohibit abortions past the sixth week of pregnancy, and in Arkansas, which has been blocked by a court from enforcing a ban in the 12th week and beyond. A lawsuit challenging the North Dakota law is pending.
A key provision in the Texas law will prohibit abortions after the 20th week post-fertilization — four weeks earlier than currently allowed — except when the woman’s life is endangered or in cases of “severe fetal abnormality.” Legislators based the ban on disputed medical findings indicating that a 20-week-old fetus can begin feeling pain.
The Texas law also adds regulations for clinics, doctors and the dispensing of abortion-inducing drugs. Supporters say the regulations will protect the health of women who receive an abortion; opponents say the intent is to close clinics and reduce access to the procedure. The outcome of the anticipated lawsuit will depend largely on which argument the courts accept.
Eleven states preceded Texas in enacting 20-week bans based on fetal pain, beginning with Nebraska in 2010.
Seven of those states’ laws haven’t been challenged in court, but lawsuits have blocked enforcement in three states — Arizona, Idaho and Georgia. A hearing on North Dakota’s 20-week fetal pain ban — separate from its six-week limit based on detectable fetal heartbeat — will be held July 31, a day before it will take effect.
The Arizona case is the furthest along in the legal process. In May, the 9th U.S. Circuit Court of Appeals overturned the state’s 20-week ban, ruling that the Supreme Court granted states the power to limit abortions based on viability — the age at which a fetus can survive outside the womb, generally considered to be the 24th week of pregnancy.
“Arizona simply cannot proscribe a woman from choosing to obtain an abortion before the fetus is viable,” the appeals court ruled.
But advocates of the Texas law say the time is ripe for a new standard.
Testifying at a Texas Senate hearing this month, University of Notre Dame law professor O. Carter Snead said medical evidence of fetal pain is a “decidedly new and deeply salient moral fact that weighs heavily in favor of the unborn child.”
Justice Anthony Kennedy, the Supreme Court’s swing vote on abortion limits, has proved open to new considerations that change the balancing act between protecting “unborn children at all stages of pregnancy and a women’s liberty interest in seeking an abortion,” Snead said.
But University of Texas law professor John Robertson said the majority of medical evidence contradicts the claim that a 20-week-old fetus can feel pain, raising questions about whether the high court will abandon its consistently stated position that the right to an abortion exists until viability.
Many legal scholars believe the issue will be settled by the Supreme Court, though Robertson said he wouldn’t be surprised if justices allowed time for additional appeals courts to weigh other fetal-pain laws.
“I think it could be two or three years before any of this gets to the Supreme Court,” he said. “In the meantime, the law will probably be enjoined from going into effect here” because courts are bound by precedents on viability, he said.
The regulatory portions of the new Texas law have also been enacted in other states:
• Texas abortion doctors will have to obtain admitting privileges in a hospital within 30 miles of the clinic.
Federal courts have temporarily blocked roughly similar laws in three states: Mississippi, where the state’s lone abortion clinic would have been forced to close after its doctors were denied admitting privileges; Wisconsin, where two of four clinics were threatened with closure; and Alabama, where three of five clinics were endangered.
• Texas will follow U.S. Food and Drug Administration protocols for dispensing abortion-inducing drugs, limiting their use to the first seven weeks of pregnancy and requiring doctors to administer both doses in separate clinic visits instead of allowing women to take the second dose at home.
A state judge in North Dakota recently issued a permanent injunction against an FDA protocol law, saying it improperly restricted access to abortion without improving safety for women.
The Oklahoma Supreme Court also struck down a similar law as an unconstitutional limit on access to abortion. The U.S. Supreme Court accepted the case for review last month but first directed its Oklahoma counterpart to determine if the law was an outright ban on abortion drugs and whether it affected how ectopic pregnancies, when an embryo implants outside the uterus, are terminated.
Ohio’s 2004 law, however, was upheld by a federal appeals court last year, which ruled that while women have the right to terminate a pregnancy, “the (Supreme) Court has not extended constitutional protection to a woman’s preferred method” of abortion.
• After Sept. 1, 2014, all Texas abortions will have to take place in ambulatory surgical centers, which require specialized medical equipment, sterile-flow ventilation systems, larger operating rooms and wider halls than are typical for abortion clinics, as well as other standards found in 117 pages of state regulations.
About half the states have varying requirements for hospital-like settings in abortion clinics, but most are not as extensive as the Texas law, Crepps said. A federal judge temporarily blocked a comparable law in Kansas in 2011, she said.
Opponents say the Texas law will force many of the state’s 36 abortion clinics to close because the surgical center requirement would cost hundreds of thousands, if not millions, of dollars to meet. Supporters are skeptical, saying most clinics continued operating in Pennsylvania and Virginia after similar regulations were adopted.
The fate of the Texas regulations will likely hinge on standards, adopted by the Supreme Court, allowing states to place certain limits on abortion clinics and doctors as long as they don’t create a “substantial obstacle” to women seeking abortions.
Balancing that standard, however, is a state’s interest in protecting its citizens, and Texas Republicans argued repeatedly that the regulations are necessary to protect the health and safety of women who seek an abortion.
For the courts, Robertson said, “the question is, first, are they making it harder to have abortions? And, then, is there a good reason for the regulations?”
The Texas law was written to allow unaffected sections to remain in force if any provision was declared unconstitutional.
Reporter Chuck Lindell has covered legal affairs since 2005 and has followed proposals to limit abortion through this year’s legislative sessions.