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Federal Judge overturns one provision of Texas’s pro-life HB 2 but Pain-Capable Unborn Child provision not challenged and goes into effect Tuesday

by | Oct 28, 2013

By Dave Andrusko

Editor’s note. This updates a story filed earlier today.

Judge Lee Yeakel

Judge Lee Yeakel

Austin-based U.S. District Judge Lee Yeakel today overturned a portion of Texas’s pro-life HB 2 that required abortionists to have admitting privileges in a hospital within 30 miles. Texas Attorney General Greg Abbott is expected to file an emergency appeal of Yeakel’s order to the 5th Circuit Court of Appeals in New Orleans.

However Judge Yeakel offered a mixed conclusion on that portion of HB 2 that addresses chemical abortifacients and how they are administered.

Although addressed in media accounts as little more than a side note (at best), the ACLU, the Center for Reproductive Rights, Planned Parenthood of Greater Texas, and several other Texas clinic owners did not challenge that part of HB2 which prohibits killing unborn children who have reached the developmental milestone of being able to feel pain which substantial medical evidence places at 20 weeks, if not earlier. Pro-abortionists are leery about taking on a law that clearly demonstrates that the pain-capable unborn child is a living member of the human family worthy of protection.

rickperry123

Pro-Life Texas Gov. Rick Perry

The Pain-Capable Unborn Child Protection Act is now the law in ten states.

Judge Yeakel and the 5th Circuit Court of Appeals have disagreed about abortion-related laws previously. He issued a temporary injunction against a Texas law that disqualified abortion business affiliates from participating in the state’s Women’s Health Program which first a three-judge panel and then the full circuit overturned.

In his decision today Judge Yeakel declared that “the act’s admitting-privileges provision is without a rational basis and places a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” At last week’s three-day trial, some abortion clinics argued that they had been unable to find hospitals willing to admit their abortionists and as a result a sizable proportion would be forced to close down.

Texas Solicitor General Jonathan F. Mitchell disputed those assertions, “saying the group had no evidence to support its claims and was wrongly trying to shift the burden of proof to the government.” Mitchell maintained that the admitting-privilege rule would not pose an “undue burden” on women seeking abortions, which would remain available in Texas.

Moreover, “The Supreme Court has recognized that the state’s interest in promoting fetal life is present throughout pregnancy,” Mitchell said.

The measure requires that the abortionist be in the same room as the woman receiving the chemical abortifacients (which is not the case with so-called ‘web-cam” abortions) and that abortionists follow the protocol approved by the FDA for the use of the two-drug “RU-486” abortion technique. The two drugs are the RU-486 itself which kills the baby and a prostaglandin which induces contractions to expel the now dead baby.

What Judge Yeakel appears to be saying is three-fold. First, that it is not an undue burden for Texas to require that abortionists use the FDA protocol that limits the technique to the first 49 days EXCEPT for those “women for whom surgical abortion is, in the sound medical opinion of their treating physician, a significant health risk during the period of pregnancy falling 50-63 days.”

Second, abortionists cannot tinker with the FDA protocol with one exception: the respective dosages of RU-486 and the prostaglandin can be altered. Abortionists like to use more of the cheaper prostaglandin than the more expensive RU-486.

Third, it is acceptable to require the abortionist “must examine the pregnant woman,” which is not done in web-cam abortions where the abortionist communicates via teleconferencing.

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Categories: Judicial