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September 02, 2014 9:52 AM Candor From the Bench

By Ed Kilgore

Anyone paying attention to the law and politics of abortion is aware that the recent wave of “health regulations” on abortion providers that has swept Republican-controlled states has little or nothing to do with health, aside from efforts to seize on publicity over Kermit Gosnell’s illegal abortion operation in Philadelphia. These cookie-cutter laws are aimed at shutting down abortion clinics, plain and simple. They are framed as “health regulations” in order to give friendly courts performing judicial review a way around the prevailing “undue burden” standard for post-viability abortion restrictions, and also to take advantage of the Supreme Court’s weakness for paternalistic “protections” for women that just incidentally have the effect of taking away their reproductive rights.

Well, it should be clear by now that Texas-based federal judge Lee Yeakel (a George W. Bush appointee, as it happens) does not run a courtroom friendly to this sort of indirection approach to banning abortion. For the second time, Yeakel has ruled in favor of a challenge to Texas’ new abortion law (HB2), and this time he’s calling out the Texas legislature for its mendacity (per a report from ThinkProgress’ Ian Millhiser):

Responding to the state’s argument that some Texans can seek abortions in New Mexico if they are unable to obtain one in Texas thanks to HB2, Yeakel notes that this argument completely undermines any suggestion that these laws are supposed to protect women’s health
:
“If the State’s true purpose in enacting the ambulatory-surgical-center requirement is to protect the health and safety of Texas women who seek abortions, it is disingenuous and incompatible with that goal to argue that Texas women can seek abortion care in a state with lesser regulations. If, however, the State’s underlying purpose in enacting the requirement was to reduce or eliminate abortion in parts or all of Texas, the State’s position is perfectly congruent with such a goal.”
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Yeakel, in other words, calls a sham a sham. He recognizes, in the words of the Supreme Court, that the purpose HB2 is to “place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” And he comes just one step from outright accusing the state of lying when it claims that the law was actually enacted to protect women’s health.

Yeakel’s earlier decision against HB2 was instantly overturned by the conservative Fifth Circuit Court of Appeals. That will probably occur again this time. But at least the truth about the intent of this kind of law will be on the table.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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