By Clint Durrett
(l)Blogger & an online clinical assistant at Home to Women, and amn, Lawyer
Texas has received plenty of attention for attempting to put an unconstitutional “trigger provision” into law that would immediately outlaw abortion in the state—a move that was ultimately rejected by the state’s Supreme Court earlier this summer. But such an outright ban—even if it is subsequently made illegal—would never happen now, because of a federal judge’s ruling in a separate lawsuit.
Because this “trigger provision” is so constitutionally suspect, the U.S. Court of Appeals for the 5th Circuit in New Orleans has ordered a temporary restraining order against the measure—a temporary restraining order that now must last at least until later this month, unless U.S. District Judge Lee Yeakel, also in New Orleans, issues a permanent restraining order as well.
Texas legislators are currently appealing this case—along with other judicial decisions against similar anti-abortion laws—and may end up getting the ultimate sanction if their appeal is denied. From one viewpoint, it’s doubtful that the 5th Circuit will uphold Texas’ decision to enforce its anti-abortion law, as Judge Yeakel has shown a strong willingness to do so in his past decisions.
Supporters of the assault law in Texas have claimed that it’s needed in part because early abortions are unsafe. But it’s worth considering that, while a procedure can become more dangerous, and more costly, the U.S. Supreme Court has already made clear that states can’t ban abortion on the basis of abortion-inducing drugs and devices, because those procedures aren’t anything like abortion—and therefore aren’t a component of a woman’s right to an abortion. They can, however, ban “coerced abortion”—or when a doctor forces a woman to abort her child by inducing the abortion herself—because those laws are pro-life and thus on stronger legal footing. So the Supreme Court will likely reject such a justification in the Texan case.
Texas has done a good job of antagonizing its pro-choice allies in this case. Back in June, when the state’s Supreme Court essentially declared the “trigger provision” unconstitutional, it declared that it has “no business dictating the law of one court-appointed judge in another court, much less three other courts across the country.” On Friday, just as this opinion was being released, a message was posted on Governor Greg Abbott’s Facebook page saying: “Not only is the late-term abortion ban unconstitutional, but it must be overturned, because the constitution does not allow an artificial deadline which forces [the state] to adopt a judgment contrary to its own self-interested interest.”
Some have questioned whether this decision might provide cover for an effort to overrule Justice Kagan’s opinion from the Supreme Court’s January ruling in Whole Woman’s Health v. Hellerstedt. The Supreme Court’s decision there noted that, because the states cannot compel a woman to carry a pregnancy to term, abortion is “an activity apart from the right to privacy.” Though the Texas laws challenged in this case passed constitutional muster, Justice Kagan noted that the high court “underestimated” their effect, and that their provisions “applied primarily to poor women who live outside large cities, where safe, legal abortion is most limited.” Whether this judgment might be enough to trigger a Supreme Court review of Whole Woman’s Health is still unclear.
I’m pleased to see that Texas didn’t succumb to Justice Kagan’s “unconstitutional equal protection of the laws” mistake. The state shouldn’t be in the business of outlawing abortion when the law protects against other forms of abuse, and it shouldn’t be doing it regardless of whether the Supreme Court has deemed this kind of regulation a legitimate step against abuse.
Clint Durrett is a physician and the founder of Home to Women, which offers a telemedicine option for women seeking abortions. Dr. Durrett is also an internist and a physician’s assistant and is a blogger and an online clinical assistant at Home to Women.