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Both Sides on Texas Abortion Bill Welcome Future Legal Challenges

Veronica Zaragovia for KUT

A familiar sound filled the Texas House on Wednesday morning – the voting bell, applause and protesters.

House Bill 2 passed, 96 to 49 nays, and it's also expected to pass the Senate, late this week or early next. Opponents of the new abortion restrictions say regardless, it will end up in court.

Attorney and State Rep. Bryan Hughes, R-Mineola, said that could help the bill’s supporters, too.

"Roe v. Wade is a 1973 case. And even folks who agree with the holding, many of them will agree it’s not the best written opinion, not the best reasoned opinion, and it’s based on medical science circa 1973," Rep. Hughes said. "A lot has changed since that time. And so over time even the Supreme Court has ruled that states have the right to protect what they call potential life or life in the womb."

In 1992, the U.S. Supreme Court affirmed Roe v. Wade in its Planned Parenthood v. Casey decision.  It said states cannot ban abortion. But it did give states more leeway to regulate abortions of “viable” fetuses.  

"You know, Justice [Anthony] Kennedy is the swing vote. And he was in the majority in the Casey decision," said David Orentlicher, a law professor at Indiana University Robert McKinney School of Law. "The way they put it is you can’t put an undo burden, a substantial obstacle in her path. And Texas, I think, by saying you can’t have an abortion after 20 weeks, most fetuses aren’t viable until 22, 23 weeks."

Requiring women to pay for abortions at ambulatory surgical centers – more expensive than clinics – could be considered an undue burden.

Twelve states have passed 20-week bans. Courts have blocked the bans in Arizona, Georgia and Idaho, according to the Center for Reproductive Rights.

State Rep. Gene Wu, D-Houston, is a trial lawyer who opposes the bill making its way through the Texas Legislature.

"We tried to put amendments that would take away the unconstitutionality or at least try to alleviate it," Wu said. "Those were offered and they were soundly rejected and rejected on party lines. This will make it very clear to the courts what the intent of the bill actually is."

But Rep. Bryan Hughes says the bill’s severability clause could help if a court strikes down any freestanding provision.

"That says that even if part of the bill were slowed down by a court, the rest of the bill could go forward," he said. "So we’re very optimistic about it. Different parts of the country are in different regions. We’re in the fifth circuit and it’s been a fair and reasonable circuit, so we think we’d get a fair shake here."

If Gov. Rick Perry signs the bill, it would become law 90 days after the last day of the special session. The clinics would have until September 2014 to upgrade.  

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