(c) 2013, Bloomberg News.
(c) 2013, Bloomberg News.
AUSTIN — State Sen. Wendy Davis, D, spoke for more than 10 hours from the floor of the Texas Senate in June, trying to block a legislative package that would limit the availability of abortion in the nation's second-most populous state. She failed; Gov. Rick Perry, R, signed the bill July 18.
This week, a federal judge revived Davis' argument in her now-famous filibuster, striking down a provision that would require abortion clinic doctors to affiliate with local hospitals, forcing many abortion clinics to close.
On Oct. 3, Davis, 50, announced she would run for governor, seeking to be the first Democrat, or woman, to hold the office since Ann Richards almost two decades ago. Her potential opponent, Texas Attorney General Greg Abbott, asked a federal appeals court Tuesday to delay U.S. District Judge Lee Yeakel's decision while the state seeks its reversal. Opponents of the law filed papers almost immediately opposing the request.
"Texas families are stronger and healthier when women across the state have access to quality health care," Davis, a lawyer, said after the ruling. "As a mother, I would rather see our tax dollars spent on improving our kid's schools than defending this law."
Texas Sen. Ted Cruz, a prospective Republican presidential candidate, said he hoped the U.S. Court of Appeals would uphold the state's "reasonable law." The restrictions were to take effect Tuesday.
In his motion seeking to block the Austin federal court ruling, Abbott, who seeks the Republican nomination for governor, said the test for the Texas law's legality is "whether it's possible to imagine that hospital-admitting privileges could improve patient care."
He said the measure "easily" meets that standard. Davis didn't address the abortion debate directly in her Oct. 28 statement. Brandon Rottinghaus, a political science professor at the University of Houston, said Davis may be seeking distance from the issue ahead of next year's election.
"Wendy Davis has to be very careful how and when she raises the issue of abortion," Rottinghaus said in an interview. "Her base is excited about the issue, but that base is much smaller than what she will need to cross over if she has a chance to win."
Early polls for the election show Abbott, 55, is ahead by about seven percentage points, with more than 30 percent of voters undecided, he said.
"The race Greg Abbott wants to run is that Wendy Davis is too radical for Texas," Rottinghaus said.
Bo Delp, Davis' campaign spokesman, didn't immediately reply to telephone messages seeking comment.
At the outset of the three-day trial in Austin federal court over the Texas abortion law's constitutionality, Yeakel noted the strong emotions evoked by the issue, saying the new restrictions may end up before the U.S. Supreme Court.
"Sincere and caring persons of goodwill are found on both sides of the issue, but neither side will ever change the position of the other," he said in the ruling. "Legislatures and courts will continue to be confounded by the issue for the foreseeable future."
Any Supreme Court ruling on the provision struck down Oct. 28, or restrictions on drug-induced abortions that Yeakel upheld, is unlikely to come soon. The U.S. Supreme Court typically takes cases where there is a split among the federal appellate circuits, none of which have ruled on the constitutionality of such laws, according to the American Civil Liberties Union.
Mississippi appealed an order issued by a federal judge in Jackson earlier this year that temporarily blocked enforcement of that state's admitting privileges law. Wisconsin has done the same, challenging a temporary court order issued by a federal judge in Madison.
While the Wisconsin case would be heard by a federal appeals court panel based in Chicago, the Mississippi case will be reviewed by the same New Orleans-based court hearing the Texas appeal.
Even with those cases in the pipeline, University of Richmond law professor Carl Tobias said the new trend of hospital-affiliation cases may not be first in line for U.S. Supreme Court consideration.
"The Supreme Court hasn't been terribly anxious to take these cases," Tobias said of abortion law litigation generally in a telephone interview Wednesday. "A number of members of the court are perfectly content to let the appeals courts handle these cases."
The court's last significant ruling relating to the topic came in 2007 when it upheld a federal law banning some late-term abortions, Tobias said.
If the high-court does take up the issue again, it may prefer to review laws more directly curbing abortion rights, such as one limiting the availability of the procedure after the 20th week of pregnancy, he said.
In Texas, a separate provision of the package Perry signed into law imposes such a ban.
Still, Tobias said, a high court decision to grant a petition for review doesn't require the concurrence of all nine justices.
"You only need four and there may be four," Tobias said.
The legislation signed by Perry also requires abortion facilities to become outpatient surgical centers, which along with the 20-week limit, wasn't at stake in the lawsuit in which Yeakel ruled.
In his ruling, Yeakel held compulsory affiliation "does not bear a rational relationship to the legitimate right of the state in preserving and promoting fetal life or a woman's health."
His decision was only a partial victory for abortion-rights advocates. He allowed Texas to enforce restrictions on using drugs to terminate pregnancy, except when the mother's health is at extreme risk.
The challenge to the law was filed by the New York-based ACLU and the Center for Reproductive Rights. Those groups, in a statement issued jointly with Planned Parenthood, praised Yeakel's decision on the affiliation rule, while criticizing his decision to let the bulk of the drug-induced abortion restriction stand.
The decision on hospital affiliation "has averted a catastrophic health crisis for women," Nancy Northup, president of the Center for Reproductive Rights, said in a statement. "Politicians, not doctors, pushed for both these unconstitutional restrictions."
The medication ruling "will force providers to use less- safe methods," Louise Melling, deputy legal director for the ACLU, said in a statement.
As of early last month, at least 58 U.S. clinics — almost one in 10 — have shut or stopped providing abortions since 2011 amid a Republican-led push at the state-level to legislate abortion out of existence.
The wave of regulations making it too expensive or logistically impossible for facilities to remain in business drove at least a third of the closings. Demographic changes, declining demand, industry consolidation, doctor retirements and crackdowns on unfit providers were also behind the drop.
However, as challenges to these laws now filter through the courts, supporters of abortion rights have been largely successful, as federal judges deem most of the new laws unconstitutional under established Supreme Court precedent.
The Texas case may now be the highest profile defeat for abortion opponents seeking court rulings by sympathetic judges, and eventually, a rollback of Roe v. Wade, the 1973 Supreme Court ruling legalizing abortion. Yeakel was appointed to the bench by former President George W. Bush, who preceded Perry as governor.
While the decision, and subsequent appeals, may be fodder for the Texas gubernatorial race between Davis and Abbott, it probably won't affect the long-term battle over the newest wave of state abortion restrictions, said Jack Pitney, government professor at Claremont McKenna College in Claremont, Calif.
"Abortion is the World War I of political issues because there's not a lot of movement between one side or the other," he said. "One side may go up over the top and gain a few yards, then the other side will push back."
_ With assistance from David Montgomery in federal court in Austin, Texas, Laurel Brubaker Calkins in Houston and Esme Deprez in New York.