From Texas Tribune: Court Battle Begins Over New Abortion Regulations

For our look at the federal judiciary, in addition to federalism:

Seeking to block the state of Texas from implementing new abortion regulations, plaintiffs representing abortion providers argued Monday in a federal court that the state’s law violates the constitutional right of women to access the procedure. But the state’s attorneys defended Texas’ right to enact laws that advance protections for the life of a fetus.

U.S. District Judge Lee Yeakel, who presided over the hearing, in which arguments are scheduled to wrap up on Tuesday, was clear about what the court's role was. “This court’s job is not to rule on whether women should be allowed abortions,” said Yeakel, “but to rule on whether or not this statute comes within the existing constitutional confine.”

Given the significance of the law, Yeakel said he'd like to make a decision as soon as possible after arguments conclude.

The plaintiffs, who represent the majority of abortion providers in Texas, including four Planned Parenthood affiliates, Whole Woman’s Health and other independent abortion providers, asked the court for a preliminary injunction to block the implementation of two provisions in House Bill 2 that would take effect Oct. 29: a requirement that doctors who perform abortion have active admitting privileges at a hospital within 30 miles of the facility, and that doctors follow the FDA regimen, rather than a commonly used evidenced-based protocol, for drug-induced abortions. The plaintiffs argued that both of these provisions present an undue burden on women attempting to access abortion and are therefore unconstitutional.

The attorney general’s office argued that these provisions were not approved just to protect the safety of the mother. They were also enacted to advance the state’s interest in promoting and protecting fetal life, one state attorney said at the hearing. The burden of proof lies on the plaintiffs, the attorney said, as the U.S. Supreme Court’s ruling in Casey v. Planned Parenthood allows the state to enact laws that advance its interest in protecting fetal life, so long as it does not create an undue burden on the patient. The court could not overturn the provisions in whole, the state’s attorney argued, because a severability clause in the law requires doctors and patients who believe their constitutional rights have been violated by the law to individually seek exclusion from its provisions.