The Texas abortion law HB2 is in the news again, and again
the Houston Chronicle has a difficult time not coloring the story with their
pro-abortion position. Here’s how the Saturday, August 29, front page story begins:
For the second time in 10 months, a federal judge has struck
down a key piece of Texas’ tough new abortion law just before its implementation
was expected to force clinics across the state to close.
The facts are basically there, sort of. But, if you’re not up on this
story, you might think that various judges are consistently finding this “tough new
abortion law” too onerous to be legal.
What’s really happening is that one judge, Federal District Judge
Lee Yeakel, keeps ignoring the criteria for judging and keeps ruling according to an outcome
he wants. He stayed the law’s implementation last fall, and the stay was lifted
in three days; then his ruling was reversed entirely in April.
Earlier in August opponents went before the same judge again,
saying they shouldn’t have to comply. I wrote about the admitting privileges part of the law August 7, and son
Political Sphere followed up about what’s going on in Mississippi and Alabama
with similar laws. [“Admitting Bias, part I, part II”]
Judge Yeakel’s first ruling claimed the law didn’t pass the “undue
burden” requirement, based on the number of clinics that did not have doctors
with admitting privileges. At issue before the hearing this past month were again
the admitting privileges and also the required upgrades to be as other surgical
centers—which were set to take effect September 1st. He used the
upgrade argument to claim undue burden this time.
For both reasons, a number of clinics have chosen to close
rather than meet the law. Judge Yeakel is equating the choice of the clinics not to meet the law with undue burden placed
on women seeking abortions. But that is not the standard he should be using.
The state is not required to adopt laws to make sure clinics choose to do
business in the state; the state is merely required to make its regulations
meet standards set by the Supreme Court (as if SCOTUS had authority to set such
laws in the first place, but I digress).
As the judge was instructed last spring, the law only causes
an undue burden if the requirements have no reasonable purpose (health and
safety are a reasonable purpose here, particularly in the wake of the Gosnell
case and cases similar that have shown up in Texas), and that the law prevents
reasonably regulated clinics from operating. The state is not required to
“sponsor” such businesses, nor adapt laws to ease the financial costs to entice
such businesses.
Nothing has changed. Judge Yeakel is imposing his viewpoint
again, rather than judging according to the law. The clinics involved may have
shown that fewer clinics are operating, but they have not shown that the law
prevented them.
Additionally in Friday’s ruling, Judge Yeakel exempted the
El Paso and McAllen areas from the law’s requirements, because no doctors got
admitting privileges, and no clinics would remain open. That would mean women
seeking abortions in that part of the state would have a longer drive—if they
chose to stay in Texas. But they were within 15 miles of a clinic in New
Mexico. The out-of-state clinic would not necessarily conform to health and
safety rules required in Texas, but the judge just said Texas clinics in those
areas would fail compliance as well, and that’s OK—because it’s more important
to have abortion clinics in Texas than to have safe and reliable medical facilities. Somehow that shows how caring he is about El Paso women.
The distance rule set by SCOTUS is 150 miles. If the law is
fully implemented, with any existing clinics refusing to meet the new standards
and therefore closing, it still so happens that 86% of Texas women live within
150 miles of such a clinic. And there is nothing the state is doing to prevent
additional clinics from meeting the higher standards to locate near the other 14%. The clinics that are closing are
refusing to put their financial resources into health and safety upgrades; they
prefer to close rather than to raise the cost of doing their grisly business.
What I expect will happen (and what the state expects to
happen) is that the 5th Circuit will rule quickly, reversing
AGAIN Judge Yeakel’s imposition of his personal opinion, rather than following
the law. If this happens, it is what in casual legal circles would be called a
“bench slap.” The judge is being put in his place for failing to apply the law and
instead imposing his opinion of what he wants to be the outcome.
Bench slapping happens to the 9th Circuit
(particularly any three-judge panel operating in California) pretty regularly,
when its decisions are vacated by the Supreme Court. And it is becoming
something of a habit for the pro-abortion-under-any-circumstances Judge Yeakel.
Let’s hope the 5th Circuit takes care of him again promptly.
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