It's September 11, and the harshest restriction in Texas' new abortion law, its requirement that all abortions take place at an ambulatory surgical center, has yet to go into effect.
HB2 was supposed to become the law of Texas on September 1, and the ACS rule would have immediately shuttered all but seven of the state's 22 abortion providers, but on August 29 U.S. District Judge Lee Yeakel found the surgical center requirement unconstitutional, giving the clinics a reprieve. How long the reprieve lasts is up to three judges on the 5th U.S. Circuit Court of Appeals in New Orleans, and the immediate future for clinics is not promising.
See also: Planned Parenthood's New HB2-Proofed Clinic Opens in Southern Dallas As its did in 2013 after Yeakel struck down HB2's requirement that any doctor performing an abortion have admitting privileges at a hospital within 30 miles of his or her clinic, the state immediately appealed his latest ruling to the 5th Circuit. Unlike in the first case, the appellate court did not grant an emergency stay allowing the law to go into effect. Instead, it scheduled a hearing Friday over whether to let the law go into effect while appeals wend their way through courts.
If the 5th Circuit grants the stay, all of HB2 will go into full effect immediately. If it doesn't Texas' remaining non-ASC certified providers will be able to legally operate until the circuit provides its full appeal ruling, likely a few months from now.
See also: How Texas' New Abortion Restrictions Have Actually Impacted Access to the Procedure The stay ruling is a big deal. Even though the clinics to be affected are nonprofits, they need revenue to continue providing care. If the stay is granted, even if the state eventually loses its appeal, healthcare in the state will suffer.
The three judges assembled for Friday's hearing are a mixed bunch. According Razvan Ungureanu, a Houston attorney and frequent contributor to his firm's 5th Circuit blog, Jerry Smith will likely side with the state, Stephen Higginson will likely side with the clinics suing the state and Jennifer Elrod will be the swing vote. Elrod sided with the state in the previous HB2 case.
The likeliest outcome, it seems, is that the circuit will grant the stay, which would mean the judges on the panel believe that the state is likely to succeed in its appeal.
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Both of the HB2 cases are likely to be heard eventually by the U.S. Supreme Court, Ungureanu says. Four Supreme Court justices have said that the underlying constitutional issues of the Texas law are questions the court should address.
Whatever happens, groups like Planned Parenthood will be there, doing what they always do, says Kelly Hart, senior director of government relations at Planned Parenthood of Greater Texas.
"We're hoping that the 5th Circuit will look at the geographic realities of Texas and realize that fewer than 10 providers is not enough for the state and that they will look at the undue burden that's being placed on women," she says. "In the meantime we are doing everything we can to make the procedure accessible for, at least, women in the part of the state where we can."
In the previous HB2 case heard by the appeals court, the justices granted the stay in two days. This one may take a bit longer because, unlike the first case, the court is hearing oral arguments, but Ungureanu expects the decision within a week or maybe even a few days.