Elizabeth Rose von Kreisler and a team of eight other lawyers representing the plaintiffs in federal litigation that pits abortion clinics and three doctors against the state of Texas woke up early this morning anticipating a full day ahead of them.
“I think everybody was ready to work,” says von Kreisler. The associate with Austin’s George Brothers Kincaid & Horton is local counsel for the plaintiffs in Planned Parenthood of Greater Texas Surgical Health Services v. Greg Abbott, Attorney General of Texas et al., which is filed in U.S. District Court for the Western District of Texas.
At around 2:00 a.m. today, the Office of the Attorney General filed an emergency motion to stay U.S. District Judge Lee Yeakel’s Oct. 28 ruling. The plaintiffs expect to file their response to that OAG motion by the end of the day, Kreisler says.
In his 26-page memorandum and opinion, issued after a three-day bench trial, Yeakel ruled in favor of the abortion clinics and doctors. In the ruling, Yeakel writes that the plaintiffs have complained that certain provisions of HB 2, passed by the 83rd Texas legislature, and scheduled to become effective Oct. 29, should be declared unconstitutional and that the court should issue a permanent injunction enjoining the OAG from enforcing the new rules. Those rules require that abortion doctors must have admitting privileges at a hospital within 30 miles of their clinic and that all abortions must take place in surgical centers, rather than allowing women to take abortion drugs at home.
In his memorandum and opinion, Yeakel concludes that “the admitting privileges provision of House Bill 2 does not bear a rational relationship to the legitimate right of the State in preserving and promoting fetal life or a woman’s health and, in any event, places a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus and is thus an undue burden to her.” He therefore enjoins enforcement of the provision.
But in the same memorandum and opinion, Yeakel issued a more limited ruling on the question of taking at-home abortion drugs.
“Although the medication abortion provisions do not generally place an undue burden on a woman seeking an abortion, they do if they ban a medication abortion where a physician determines, in appropriate medical judgment, such a procedure is necessary for the preservation of the life or health of the mother,” Yeakel writes.
He notes that he will enjoin enforcement of the at-home drug provisions of the new state law “in such instance.”
Immediately following Yeakel’s ruling on Oct. 28, the OAG issued a statement by spokeswoman Lauren Bean: “The court upheld part of the law and enjoined part of the law. The State has already appealed the court’s ruling. We appreciate the trial court’s attention in this matter. As everyone—including the trial court judge—has acknowledged, this is a matter that will ultimately be resolved by the appellate courts or the U.S. Supreme Court.”
Then, early on Oct. 29, the OAG filed with U.S. Court of Appeals for the Fifth Circuit an emergency motion to stay final judgment pending appeal and motion for a compressed briefing schedule and expedited consideration at the January sitting.
In those motions, both in the same filing, the OAG argues that Yeakel took his “extraordinary step without citing (much less purporting to satisfy) the constitutional standard for facial challenges, without confronting the statute’s severability clause, and without finding a single burden on a single abortion patient that the Supreme Court of the United States has characterized as ‘undue.’ “
The motions also note the time pressure of the litigation: “We did not first seek a stay in the district court because it would have been impracticable, given that HB 2 is scheduled to take effect on October 29, 2013,” the OAG writes.