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Four Takeaways from Judge Yeakel’s decision in the case of Texas’ HB 2 law

by | Oct 29, 2013

By Dave Andrusko

gavel5Depending on which story you read late yesterday or earlier today, the average reader will come away with a radically different understanding of yesterday’s decision by Austin-based U.S. District Judge Lee Yeakel on portions of Texas’s pro-life HB 2.

If you read what we wrote—“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,”–you would appreciate that stories that simplified his 26-page decision badly missed the mark. Here are four takeaways from Judge Yeakel’s decision.

#1. Judge Yeakel overturned that part of the law which required abortionists to have admitting privileges in a hospital within 30 miles. 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 Attorney General Greg Abbott quickly filed an emergency appeal of Yeakel’s order to the 5th Circuit Court of Appeals in New Orleans. Today his office filed an emergency motion, asking the courts to stay final judgment on Yeakel’s ruling pending the appeal.

All of that is fairly straightforward.

#2. While Abbott was busy filing an appeal, the silence of pro-abortionists was deafening on the Pain-Capable Unborn Child Protection Act. That law which prohibits aborting babies capable of feeling pain went into effect today. CBS News put the best face on this (from the pro-abortion perspective): “Also not included in the suit was the 20-week ban since the vast majority of abortions are performed prior to that threshold.”

But the reluctance of the ACLU, the Center for Reproductive Rights, Planned Parenthood of Greater Texas, and several other Texas clinic owners and abortionists had nothing to do with the number of abortions and everything to do with the fact that they desperately want to avoid talking about unborn babies feeling pain as they are torn apart.

Pro-Life Gov. Rick Perry

Pro-Life Gov. Rick Perry

#3. Yeakel’s decision on chemical abortifacients was a mixed bag, but more than many observers anticipated from him. The Texas law requires 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 (mifepristone) which kills the baby and a prostaglandin (misoprostol) which induces contractions to expel the now dead baby.

What did Yeakel rule? He said nothing to challenge the law’s requirement that the abortionist “must examine the pregnant woman,” which is not done in web-cam abortions where the abortionist communicates with her via teleconferencing. Very, very important for the Abortion Industry sees web-cam abortions as a massive new revenue stream. (See “Judge to hear Planned Parenthood challenge to Iowa board of medicine’s new rules governing web-cam abortions”)

What about the FDA protocol requirement that limits the use of the RU-486 abortion technique to the first 49 days? (The abortion industry wants it expanded to 63 days.) He upheld the requirement, aptly noting that there is an alternative for the period between 49 days and 63 days: a surgical abortion. The only women for whom this limitation would constitute an “undue burden” are women “for whom surgical abortion is, in the sound medical opinion of their treating physician, a significant health risk.” Those women would be allowed to have a chemical abortion.

Then there is the other pro-abortion goal vis a vis chemical abortions: they wish to use far more of the cheaper prostaglandin and less of the more expensive mifepristone than is recommended by the FDA. Yeakel gave the green light to that change.

But Yeakel also left in place the Texas law requirement’s that the abortionist or his office must schedule a visit “no more than 14 days after the administration or use of the drug.”

#4. Meanwhile, earlier today, we came closer to some sort of possible resolution on Oklahoma 2011 law on chemical abortions. The law requires that abortionists not use abortion-inducing drugs when a woman’s pregnancy is past 49 days and the woman must come back to the clinic or office to receive the second drug (the prostaglandin).

This case has gone up and down the legal chain for years. To take just the highlights, the Oklahoma’s Supreme Court declared the law unconstitutional in Cline v. Oklahoma Coalition for Reproductive Justice.

The Oklahoma Attorney General asked the United States Supreme Court to get involved, but the High Court first asked the Oklahoma Supreme Court to answer some questions about its decision. According to the Washington Post, in its new filing, “Oklahoma’s Supreme Court answered those questions,” reaffirming its belief that the 2011 law violates the federal constitution.

Now the issue is whether the High Court reviews the Oklahoma Supreme Court’s decision, lets it stand, or chooses some third option.

Please join those who are following me on Twitter at twitter.com/daveha. Send your comments to daveandrusko@gmail.com.

Categories: Judicial