A
lawsuit challenging abortion regulations in Texas is being fast-tracked through
the appeals process and most likely will go to the U.S. Supreme Court, with attorneys
for both sides navigating uncharted legal waters.
As
Whole Woman's Health v. Lakey is bandied in the appeals process, Texas abortion
clinics have closed and now reopened since September 1, the date when the House
Bill 2 was scheduled to go into effect. In the latest iteration, the Supreme
Court ruled 6-3 in mid-October that HB 2 cannot go into effect while two key
provisions are under appeal.
The
case is now being expedited. Briefs should be filed before year's end and oral
arguments heard as early as January before the U.S. Court of Appeals Fifth
Circuit in New Orleans, according to Denise Burke, an attorney and vice
president for legal affairs for Americans United for Life, a nonprofit
organization that drafts pro-life public policy and law.
Burke
told the Southern Baptist TEXAN she
is confident the contested provisions can stand up to the appellate court's
scrutiny. But she would not presume to "read the tea leaves" about a
Supreme Court ruling based on its five-sentence October 14 statement vacating a
Fifth Circuit ruling to allow enforcement of the law, enacted in July 2013.
The
Supreme Court statement named the dissenting justices, an unusual move when
considering emergency applications, with Justices Antonin Scalia, Clarence
Thomas, and Samuel Alito voting to deny the hearing. A majority decision to
deny would have left the Fifth Circuit's October 2 judgment in place that
allowed enforcement of the law, closing all but eight abortion clinics in
Texas.
Some
of the clinics forced to close October 3 due to full implementation of the law
began to open again following the high court ruling.
The
Supreme Court ruling reinstated an injunction imposed by federal Judge Lee
Yeakel August 29 halting the implementation of a provision requiring abortion
clinics meet ambulatory service center (ASC) standards.
Only
four other states have a similar provision. Missouri's law was challenged and
upheld. Alabama and Pennsylvania ASC laws have not been challenged. Virginia
Gov. Terry McAuliffe will likely succeed in rolling back the provision in that
state, Burke said.
Abortion
providers claim the ASC regulations–like the rest of HB 2–are unnecessary and
created solely to make operating abortion clinics in Texas untenable. But Burke
said the provision forces clinics to operate according to the same standards as
other outpatient clinics in Texas.
Americans
United for Life is working with state legislators in Texas and other states to
draft laws establishing inspection guidelines. Failure to adequately inspect
abortion clinics in Pennsylvania led to the atrocities of abortionist Kermit
Gosnell, who was convicted of murder in May 2013 for killing babies born alive
in his Philadelphia abortion clinic. That state's ASC law, established in the
wake of the Gosnell controversy, most likely will not be challenged in order to
avoid bringing to light the lax inspection standards, Burke said.
