AUSTIN, Texas — In a ruling issued Tuesday evening, the United States Court of Appeals for the Fifth Circuit in New Orleans granted the motion for stay pending appeal filed by Texas Attorney General Greg Abbott in the litigation challenging the constitutionality of HB2, Texas’ abortion law passed during the 2013 legislative session, according to a report by the Houston Chronicle.
Abbott’s motion appealed an order issued last Friday by Judge Lee Yeakel of the United States District Court for the Western District of Texas, Austin Division that blocked enforcement of two provisions of the law. Yeakel’s ruling stated that the requirement for all currently-licensed abortion clinics to meet the standards under Texas law for ambulatory surgical centers presented an undue burden on the right of women to seek an abortion, and he also ordered an exemption for the McAllen and El Paso areas from the requirement for abortion doctors to have admitting privileges at a nearby hospital.
The case has worked its way back and forth through the appellate process since HB2 was passed, originally visiting Yeakel’s courtroom in 2013. In that first round of the litigation, Yeakel struck the entire admitting privileges provision from the law, but his ruling was mostly overturned by the Fifth Circuit and returned back to Yeakel for further review. Last Friday’s order was the result.
The scheduled effective date for HB2 was September 1, 2014, and Abbott’s motion had requested that the court allow the law to go into effect while the appeals process continued. This would have resulted in the closing of several of the abortion clinics that filed suit in this case on Monday, and the Fifth Circuit declined to issue an immediate stay that would have allowed this to happen.
Emergency motions like the one Abbott filed, asking a court to grant relief before the case has been heard, are generally rare and require satisfying a tough legal standard. In its opinion, the Court also criticized Abbott for filing a motion in excess of the maximum allowed page limit and for waiting until 11:59 p.m. on Sunday, August 31 to file the motion for stay pending appeal, with a corrected motion filed at 12:08 a.m. on Monday, September 1, to appeal a ruling issued on the previous Friday.
Now, the parties challenging the enforcement of HB2 will have until September 8, 2014 to file any motions opposing the stay. Abbott will have until September 10 to file any responsive pleadings, and the case is set for oral argument on September 12. The Fifth Circuit could still rule after the conclusion of the September 12 hearing that HB2 be allowed to go into effect while any additional appeals continue, but the affected abortion clinics will stay open until at least that time.
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