The Texas Department of State Health Services has been ordered to “cease and desist” in its attempt to block the reopening of a legal abortion provider in El Paso, according to federal court documents.
It’s a move that attorneys for the provider have called a deliberate attempt by the State of Texas to circumvent the authority of the Supreme Court.
Federal Judge Lee Yeakel issued a brief but strongly worded ruling Monday night telling the Texas Department of State Health Services (DSHS) to stop its attempts to enforce a federally blocked portion of the state’s omnibus anti-choice law.
“Failure to comply with this order shall subject defendants to sanctions for contempt of court,” Yeakel wrote.
The Roberts Court in June upheld Yeakel’s ruling, which enjoined Texas from enforcing the portion of the omnibus anti-choice law, HB 2, which requires abortion providers to operate as hospital-like ambulatory surgical centers (ASCs). That Supreme Court order allowed Texas facilities to operate as smaller clinics, rather than ASCs.
Without the order, all but nine legal abortion facilities would have shuttered across the state.
But Reproductive Services of El Paso says that the state ignored the Supreme Court order and Yeakel’s standing ruling, and tried to block its attempts to reopen after shuttering for 18 months as a result of HB 2. Reproductive Services had begun the process of re-licensure in hopes of reopening, pending an ultimately favorable court decision.
In court documents filed in August, Reproductive Services—which operated as a legally licensed abortion provider, but not an ASC, for 37 years before it closed in April 2014—said that state health bureaucrats suddenly decided to walk back assurances that the provider would be reissued a license to operate. That’s when the state filed a motion asking a federal court to clarify its earlier ruling blocking the enforcement of HB 2’s ASC provision, a ruling further upheld in June by the Supreme Court.
Jan Soifer, local Austin-based counsel for the independent abortion providers challenging HB 2, said that during a July 30 meeting, the Texas Department of State Health Services (DSHS) told Reproductive Services that “everything appeared to be in order” with the clinic’s licensure.
Less than a week later, Soifer said, “suddenly there’s this change of heart.”
That’s when DSHS told Reproductive Services that the state considered the clinic a new abortion facility, not a previously licensed facility, and therefore that the El Paso clinic would have to make million-dollar renovations to comply with HB 2’s ASC requirement. DSHS then asked Judge Yeakel, who originally invalidated the state’s ASC requirement, to clarify his original ruling against the requirement.
In court documents, DSHS claims that it was not attempting to prevent Reproductive Services from reopening, only that it sought clarification on the law to ensure that the ASC provision—which was blocked by Judge Yeakel, whose decision was upheld in the Supreme Court’s June ruling—was not in effect.
Yeakel responded by issuing an order saying only that DSHS could not enforce the ASC provision and would be held in contempt if it attempted to do so.
Soifer told Rewire that she expects her clients to be able to pursue reopening their facility shortly.
“The state’s been forbidden to play this game with them,” she said. “We expect that the state will grant its license and that they will reopen.”