State Senators, from second left, Sylvia R. Garcia, D-Houston, Wendy Davis, D-Fort Worth, Royce West, D-Dallas, Kirk Watson, D-Austin, and John Whitmire, D-Houston, greet abortion rights advocates to show they voted against HB2, which the Senate approved on July 12, 2013.
Tamir Kalifa/AP

Judge strikes down parts of Texas abortion law


A federal judge ruled on Monday that parts of Texas’ strict anti-abortion law were unconstitutional.

The question before the court was whether Texas’ new abortion laws–requiring that abortion providers get admitting privileges to hospitals, imposing a less safe and outdated regimen for the administering of the abortion pill–constituted an undue burden on women seeking an abortion. (A third provision in the omnibus abortion bill, the 20-week ban, has not been challenged for fear it would force an unfavorable Supreme Court decision.) The provisions were set to go into effect on Tuesday.

District Court Judge Lee Yeakel ruled that the “admitting-privileges provision is without a rational basis,” and thus unconstitutional, but the judge had an ambiguous ruling on the medication abortion provision, saying it is constitutional “except when a physician finds such an abortion necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”

The admitting privileges provision was purportedly to protect women’s health, but the court found that to be a trumped-up reason. Although the court did not buy that the medication abortion restrictions were actually intended to protect women’s health, and would even have the opposite effect, the judge ruled that didn’t make them unconstitutional.

The decision noted that another provision, the off-label protocol, is endorsed by the American College of Obstetricians and Gynecologists, and that it presents fewer risks and fewer burdensome visits for women. The off-label protocol also allows for use two weeks later into pregnancy.

The off-label protocol means more options for women who prefer to end their pregnancy at home, rather than in a surgical procedure at a clinic. Despite the fact that “the court finds that the FDA protocol is assuredly more imposing and unpleasant for the woman,” that doesn’t make it unconstitutional, according to Judge Yeakel. The Supreme Court opened the door to that interpretation in Gonzalez v. Carhart, where it ruled that it was constitutional to ban a certain abortion procedure (so-called “partial birth abortion”) if others were still available. Yeakel did say there should be an exception if the woman has medical reasons why surgery isn’t the best option for her.

The case is likely to have an impact on the forthcoming Texas governor’s race: the declared Democratic candidate, Wendy Davis, made her name nationally by standing against it, and her expected Republican opponent, Greg Abbott, happens to be the attorney general defending the law in court.

Davis commended the ruling in a statement: “Texas families are stronger and healthier when women across the state have access to quality healthcare. I’m not surprised by the judge’s ruling. As a mother, I would rather see our tax dollars spent on improving our kid’s schools rather than defending this law.”

Abbott has said he will appeal the decision to the Fifth Circuit. The last Texas abortion restriction that came before the Fifth Circuit, the forced-ultrasound and viewing law, was struck down as unconstitutional in the district court but upheld by the famously conservative higher court.

Texas Gov. Rick Perry responded to the ruling, saying, “Today’s decision will not stop our ongoing efforts to protect life and ensure the women of our state aren’t exposed to any more of the abortion-mill horror stories that have made headlines recently. We will continue fighting to implement the laws passed by the duly elected officials of our state, laws that reflect the will and values of Texans.” 

The law went to court in September after Planned Parenthood, the Center for Reproductive Rights and the ACLU of Texas filed suit against parts of the legislation. The Supreme Court has expressed interest in hearing a challenge to a similar law out of Oklahoma restricting medication abortion.

David Taintor also contributed to this report.



Judge strikes down parts of Texas abortion law