Yesterday's Planned Parenthood lawsuit answered some questions and raised still others. Filed by several Planned Parenthood providers and Texas medical providers represented by Jim George, Elizabeth von Kreisler, and Rico Reyes of George Brothers Kincaid & Horton, the complaint was not entirely unexpected. Nor was its substance. It attacked HB2 on the grounds that it is unconstitutional, and it raised the sad fact that reproductive health services for women across more than half the state have been decimated.
However, some wondered why the 20-week limitation in the bill was not put at issue.
MSNBC reported that the reason was strategic.
"Similar laws in Arizona and Idaho were twice found unconstitutional in the Ninth Circuit of Appeals, which is considered more liberal, but a Texas challenge would go to the conservative Fifth Circuit. Not only would that court potentially uphold the law despite it blatantly violating Supreme Court precedent, as it did with previous restrictions, the combination of decisions would create a split in the circuits that would make the Supreme Court likelier to hear it. Given the current composition of the court and Justice Anthony Kennedy's unsteady support for abortion rights, that's a risk pro-choice organizations are unwilling to take."
To learn about the likelihood of the lawsuit's success, read below the jump.
|As we remarked in July, success before the U.S. Supreme Court is uncertain concerning the issue of how late into a term an abortion may be obtained. We wrote:
"The governing legal precedent is Planned Parenthood v. Casey, a 1992 Supreme Court opinion which scaled back the protections first articulated in Roe v. Wade in 1973. Where Roe had set out a trimester framework making a woman's right to choose almost inviolable at various stages of pregnancy, Casey scaled those protections back from rigid thresholds to a more abstract analysis that accounted for changes in medical technology."
"The second part of that equation is viability. Once a fetus has attained viability, the state has much more authority to regulate or forbid abortion; however, this, too, is limited by concerns for "the preservation of the life or health of the mother.""
Because of those uncertainties, it makes sense that Planned Parenthood, the Center for Reproductive Rights, and the American Civil Liberties Union would eschew this argument for now.
The other looming question, however, is - will it succeed?
As we wrote in July, the case first must make its way through federal court in Texas. At the trial level, at least, the outlook for the case seems positive.
"First, however, the case must make it out of Texas. It is reasonable to assume that a suit to block the new law from going into effect will be filed in federal court in Texas, very possibly the Western District, and very possibly the division of that court sitting in Austin. Some are speculating that if it does, Sam Sparks will be the presiding judge.
No one can say with any modicum of certainty how he - or any other judge - would rule, however, in his 2011 opinion temporarily blocking Texas' own sonogram law, Judge Sparks cautioned that it appeared that the Texas Legislature "either wants to permanently brand women who choose to get abortions, or views these certifications as potential evidence to be used against physicians and women."
If not Judge Sparks, the case could go before Judge Lee Yeakel. Notably, in 2012, Judge Yeakel issued an injunction barring the state of Texas from removing Planned Parenthood from the Women's Health Program (WHP). His injunction ultimately was vacated by the Fifth Circuit Court of Appeals when it held that the regulations fell within the authority of Texas to subsidize speech "of its choosing within its programs," and it criticized Judge Yeakel for actually analyzing the statute in its entirety."
So, while there would seem to be a chance for a favorable ruling both on the preliminary injunction and ultimately the permanent injunction from Judge Sparks or Judge Yeakel, any appeal to the Fifth Circuit Court of Appeals would seem to bear a greater likelihood of ruling against the plaintiffs and upholding the statute.
Of crucial importance, however, is what happens if either Judge Sparks or Judge Yeakel grants a preliminary injunction and prevents HB2 from being enforced while all the parties await a full trial on the merits - a final determination whether the statute is, in fact, unconstitutional. The losing party in the hearing for the preliminary injunction will almost certainly appeal to the Fifth Circuit. If the Fifth Circuit rules as it has in the past, and if the Fifth Circuit makes an advance - and arguably premature - ruling that the plaintiffs cannot show a likelihood of success, then the preliminary injunction will be lifted, HB2 will go into effect, and any hope of protection for providers such as Planned Parenthood, and their patients will have to wait for a full trial which could be months away - or longer.