The Texas Legislature is among the most aggressive in the nation when it comes to regulating the practice of abortion, churning out a steady stream of laws since 2011 that have been met with an equally aggressive legal response by abortion providers.
The result is a well-worn path between the Capitol and the federal courts, leading most recently to U.S. District Judge Lee Yeakel’s decision Wednesday to strike down a Texas law limiting the most common second-trimester procedure.
It was the seventh time this decade that a federal judge has blocked an abortion-related law or regulation that had been championed by the state’s Republican leaders, putting Texas in a familiar position — ground zero in the abortion wars.
“Texas is certainly one of the most active states when it comes to anti-abortion legislation,” said Molly Duane, a lawyer with the Center for Reproductive Rights, which has filed five lawsuits against Texas this decade, including the challenge to the second-trimester law.
“It’s fair to characterize Texas as one of the most restrictive states when it comes to regulating abortion out of existence,” Duane said.
State Sen. Bryan Hughes, R-Mineola, has been a leading advocate for tighter restrictions on abortion since he entered the Texas House in 2003.
The success in passing laws this decade was the result of strong Republican majorities in the Legislature and committed opposition to abortion by Gov. Greg Abbott and his predecessor, Rick Perry, Hughes said.
But a second important factor was a shift in strategy away from efforts to overturn Roe v. Wade — the U.S. Supreme Court case out of Texas that established a right to abortion in 1973 — toward a focus on “limits we can place on abortion,” Hughes said.
“Pro-lifers in America still want to see Roe v. Wade overturned, but in the meantime we want to save as many little babies as we can,” he said.
A stinging defeat
In 2011, the Legislature passed a law requiring pre-abortion sonograms. The regulation required abortion doctors to describe what the sonogram revealed, including the size of the fetus, body features and internal organs. The law also mandated a 24-hour waiting period — or two hours for women who live more than 100 miles from the nearest clinic — in hopes that the information would prompt women to opt out of the abortion.
U.S. District Judge Sam Sparks of Austin blocked the law from taking effect, ruling that it violated the First Amendment by improperly requiring doctors and patients to engage in government-mandated speech.
Sparks’ decision, however, was overturned by the 5th U.S. Circuit Court of Appeals, and the sonogram law remains in force.
Also in 2011, Yeakel blocked Texas from removing Planned Parenthood from a state program to provide low-income women with contraceptives and other medical care, but the 5th Circuit Court — one of the most conservative federal appeals courts in the nation — also overturned that ruling.
With those court victories secured, abortion opponents cranked up their efforts in the 2013 legislative session, passing a sweeping law that banned abortions after 20 weeks and severely limited the availability of drug-induced abortions.
The centerpiece of that law, however, was a pair of provisions — requiring doctors to get admitting privileges in a nearby hospital and mandating that all abortions take place in hospital-like settings — that would have left nine abortion clinics open in Texas, down from 42 when then-Gov. Perry signed the regulations into law in July 2013.
Yeakel overturned both requirements, but once again the 5th Circuit Court overruled the judge and allowed Texas to enforce the restrictions.
The victory for Texas was short-lived, however. The U.S. Supreme Court tossed out both regulations last year — a stinging defeat for abortion foes because the ruling required restrictions to have health benefits that outweigh their burdens, a standard that will make it harder to justify future regulations that limit access to the procedure.
The ruling also could be expensive. Lawyers for the abortion providers, as the winning side, are seeking $4.55 million in legal fees and expenses from Texas. Yeakel has yet to rule on the request.
3 rulings in 2017
This year, three Texas abortion-related restrictions have been overturned:
• A state rule requiring health facilities to bury or cremate fetal tissue, whether from an abortion or miscarriage, was blocked in January by Sparks, who said the policy appeared to be a pretext to restrict abortion access because there were few vendors available to handle fetal remains. Texas appealed, and the 5th Circuit Court will hear oral arguments Jan. 4.
In the meantime, the Legislature approved a law in May that also required burial or cremation of fetal remains. That law takes effect Feb. 1, and abortion providers have asked Sparks to include it in his injunction.
• Sparks also blocked Texas from ousting Planned Parenthood from Medicaid in February, ruling that state health officials tried to punish the organization based on “unsubstantiated and indeterminate allegations” in undercover video footage shot in 2015 by abortion opponents. The 5th Circuit Court has not set an argument date.
• Last Wednesday, Yeakel struck down a state law requiring abortion doctors to stop the fetal heartbeat before beginning the most common type of second-trimester abortion. Yeakel said the law improperly required doctors to use unproven and medically unnecessary methods to cause fetal demise that increased a woman’s risk of infection and other medical complications.
State Attorney General Ken Paxton immediately appealed that ruling.
Abortion providers and civil rights groups have vowed to remain vigilant, challenging any law or regulation that attempts to restrict abortion access in Texas.
Hughes said he and other abortion opponents will not be dissuaded by the threat of future litigation.
“We’re not going to be paralyzed by fear of the courts when we draft pro-life legislation,” he said.