Fifth Circuit Court of Appeals issues emergency stay reinstating crucial HB2 provisions


The United States Court of Appeals, Fifth Circuit, issued a partial stay on federal district Judge Lee Yeakel’s August ruling against specific parts of House Bill 2.  Over the summer, Judge Yeakel had struck down a provision of HB2, the requirement that abortion clinics meet the same structural and operational standards as ambulatory surgical centers (ASC’s).

The abortion industry argued this ASC provision put an undue burden on existing abortion businesses that were built prior to HB2 and met safety standards at the time they were built. In other words, the cost to comply with the new safety measures in HB2 would impose a financial burden in order to continue offering abortion.

Yesterday, the Fifth Circuit Court rejected the financial burden as a valid reason to reverse the new requirements:

The evidence does indicate, without specificity, that by requiring all abortion clinics to meet the minimum standards of ambulatory surgical centers, the overall cost of accessing an abortion provider will likely increase. However, as the Supreme Court recognized in Carhart, and we observed in Abbott I, “‘[T]he fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it.’” Abbott I, 734 F.3d at 413 (alteration in original) (quoting Carhart, 550 U.S. at 157–58).

As a result, abortion mills that are not in compliance with ASC standards will have to stop operations effective immediately.  The three-judge panel released a 38-page ruling, green-lighting the enforcement of HB2 while the case continues through the appellate process. A different three-judge panel of the Fifth Circuit Court will conduct the full review of the undue burden issue both for Texas women and for the abortion industry. After that step, a final decision on the matter will be issued from this court.

Throughout the court proceedings, the attorneys for the abortion businesses also argued that the ASC provision was medically unnecessary — especially in regards to RU-486, the chemical abortion pills, called “medical abortions” or “MABs” by the abortion industry. The attorneys insinuated that chemical abortions were medically safe and therefore did not need to be administered in a fully-equipped ASC facility.  The justices did not see evidence to prove that mandating that chemical abortions occur in ASCs posed an “undue burden” to the industry.

The district court did not cite to record evidence or make any findings to support its conclusion that the ambulatory surgical center provision imposes an undue burden as applied to medication abortions. Indeed, at oral argument, Plaintiffs could not identify any findings in the district court’s opinion supporting the conclusion that the ambulatory surgical center provision imposed an undue burden as applied to medication abortion.

Regrettably, yesterday’s decision did affirm one limited part of Yeakel’s injunction. The undue burden imposition could apply to pregnant women of El Paso since the only abortion clinic there did not have the means or opportunity to physically update the facility to comply with HB2. Although the Fifth Circuit sided with Yeakel’s ruling exempting the El Paso clinic on the structural ASC rules, the court still requires the El Paso clinic to comply with the operational requirements of ASCs, and consequently, the El Paso clinic will likely still stop abortions because there is little chance this clinic can meet these safety standards.

While this ruling is a victory, as a partial stay, the ruling is not permanent, and Texas Right to Life’s work to preserve the full integrity of HB2 is not finished. Check for updates on the court saga and implementation of HB2.


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