Above: A Handmaid's Tale-themed protest in the Capitol to protest anti-abortion legislation in 2017.
The Texas Legislature’s zeal for passing anti-abortion legislation has created an endless cycle of court challenges that’s frustrated lawmakers and judges alike. “Why don’t we just stop passing unconstitutional laws?” pleaded Democratic Representative Chris Turner, in the midst of a debate over a sweeping anti-abortion bill last May. But the measure passed and immediately prompted a lawsuit, landing in front of a fed-up federal judge just three months later. “There is a constant, never-ending stream of these cases,” District Court Judge Lee Yeakel, a George W. Bush appointee, said of the challenge that August. His Austin courtroom is merely a “whistlestop” on the way to the U.S. Supreme Court, he added.
Texas Republicans pass increasingly extreme anti-abortion laws, judges block them and then both sides fight it out, often all the way to SCOTUS. Many of these laws are still winding their way through the court system now, even as state lawmakers file their next round of anti-abortion bills ahead of the 2019 session. Those that pass will likely prompt more lawsuits next year.
But if any of the pending cases do reach the high court in the coming years, they’ll face a very different panel than when the cases were filed. Abortion rights advocates felt optimistic after their major win in 2016, when SCOTUS struck down much of House Bill 2 — a sweeping 2013 law that shuttered more than half the abortion clinics in the state. Now, President Donald Trump’s appointment of conservative justices Brett Kavanaugh and Neil Gorsuch throws the future of Roe v. Wade into question. Here are four reproductive justice-related challenges in Texas that could end up at SCOTUS soon.
Before Trump swung the Supreme Court to the right, reproductive rights advocates were plotting how to leverage the Court’s favorable HB 2 ruling in 2016 into more legal victories. Their plan: a sweeping lawsuit, filed this spring by abortion provider Whole Woman’s Health, along with a group of Texas abortion funds, challenging dozens of Texas anti-abortion laws from the last two decades. Their argument is that a slew of abortion regulations — including the state’s required waiting period, ultrasound and parental consent, as well as restrictions on medication abortion — are unconstitutional under the “undue burden” standard for abortion access that was affirmed in the 2016 SCOTUS ruling.
“It’s important for us, inasmuch as we get to control the path of a case, to bring things before this court before the court changes,” Amy Hagstrom Miller, founder and CEO of Whole Woman’s Health, told the Observer in June. “We’ve got to challenge it, quick.” Less than two weeks later, Justice Anthony Kennedy announced his retirement, and Trump nominated Kavanaugh soon after.
But the lawsuit presses on. “In red states like Texas, litigation is one of the only paths to move things forward,” Hagstrom Miller said in December. “We can’t change course just because people on the courts change.” She’s waiting for Yeakel — again the assigned judge — to set a court date but says this challenge, which she calls “omnibus repeal,” could be particularly lengthy, given its wide scope.
D&E Abortion Ban
Conservative activists hope this challenge of a 2017 state law goes all the way to the Supreme Court, as a way to effectively challenge the right to abortion established by Roe v. Wade. Last year, the Texas Legislature passed a law banning what anti-abortion lawmakers call “dismemberment abortions” — a nonmedical term for the dilation and evacuation (D&E) procedure, the most common form of second-trimester abortion. The bill was the top legislative priority in 2017 for the far-right group Texas Right to Life, which says the policy “sheds light on the humanity of the preborn child” and could offer a “historic opportunity” to overturn Roe.
Reproductive rights advocates say the law amounts to an illegal abortion ban, and that the state’s proposed alternatives to D&E put pregnant women at risk of unsafe practices. Last summer, a federal judge agreed that the law was an undue burden on abortion access, writing that it would cause women to “suffer irreparable harm by being unable to access the most commonly used and safest” type of abortion in the second trimester.
The state of Texas filed an appeal to the Fifth Circuit Court of Appeals, which heard arguments on the case in early November but has yet to issue a ruling.
Just days after the Supreme Court struck Texas’ anti-abortion regulations in HB 2 in 2016, the state health commission quietly entered a new rule requiring the burial or cremation of all fetal remains from abortions and miscarriages at facilities across the state. Whole Woman’s Health quickly challenged the measure, and it was ultimately blocked by a federal judge. But as litigation continued, the Legislature met the following year and passed a similar measure. That version, too, was blocked in court.
The state argues that the law shows “profound respect for the life of the unborn,” but opponents say it’s a backdoor way to shutter clinics by passing regulations they can’t comply with. Blake Norton, who shared her story publicly for first time with the Observer earlier this year, testified in July that being forced by a Catholic hospital in Austin to bury the fetal remains following her miscarriage made her feel “shamed and stigmatized.”
A judge once again sided with the plaintiffs, writing that the law would “likely cause a near catastrophic failure of the healthcare system designed to serve women of childbearing age within the State of Texas.”
The state appealed the decision to the Fifth Circuit; a hearing has not yet been set.
Planned Parenthood and Medicaid
Texas has been fighting for a few years now to kick Planned Parenthood out of its Medicaid program entirely. The state argued in 2015 that the organization was not fit to serve in the program, accusing Planned Parenthood of trying to sell fetal tissue. The state’s proof: heavily edited and widely discredited undercover videos, which Attorney General Ken Paxton has referred to as “raw, unedited footage.”
Calling the state’s arguments “the building blocks of a best-selling novel,” a federal judge halted the move last February, agreeing with Planned Parenthood advocates that kicking the provider out of Medicaid would limit access to care for thousands of low-income patients. Federal law prohibits Medicaid dollars from paying for abortions. But these bans in Texas and a handful of other states would also prevent program recipients from using their insurance to cover pap smears, cancer screenings and other services at Planned Parenthood facilities.
The Fifth Circuit heard arguments on the state’s appeal this summer, but has not yet issued a ruling. The U.S. Supreme Court in December declined to take similar cases out of Louisiana and Kansas, leaving lower court rulings in place that blocked the Medicaid ban.