Bloomberg News

Texas Abortion Law’s Hospital Privilege Requirement Blocked (2)

October 28, 2013

Anti-Abortion Demonstrators

Anti-abortion demonstrators pray in the Texas State Capitol building in Austin, Texas, on July 1, 2013. Photographer: Erich Schlegel/Getty Images

A new Texas law requiring abortion doctors to affiliate with local hospitals puts a “substantial obstacle” in the path of women seeking the procedure, a federal judge ruled, blocking its enforcement.

The measure “does not bear a rational relationship to the legitimate right of the state in preserving and promoting fetal life or a woman’s health,” U.S. District Judge Lee Yeakel in Austin said today. The provisions, part of a larger piece of legislation passed in July, were to take effect tomorrow.

The state immediately appealed the ruling, and a spokeswoman said the issue may be decided by the U.S. Supreme Court. Similar measures have been blocked by provisional courts in Alabama, Mississippi, Wisconsin and North Dakota.

Yeakel declined to void the state’s ability to enforce restrictions on using drugs to end a pregnancy, except where they would place an undue burden on a woman if a doctor determined the abortion was necessary to preserve her life or health.

Yeakel’s decision followed a 2 1/2-day trial last week.

Planned Parenthood sued Texas last month seeking to block the measures signed into law July 18 by Governor Rick Perry, a Republican.

Opposition to the legislation from state Senator Wendy Davis, a Democrat from Fort Worth, placed her in a national spotlight and became the springboard for an announcement earlier this month she would seek her parties’ nomination for governor.

Attorney General

State Attorney General Greg Abbott, a Republican and a named defendant in the lawsuit, is also running to succeed Perry.

“Today’s decision will not stop our ongoing efforts to protect life and ensure the women of our state aren’t exposed to any more of the abortion-mill horror stories that have made headlines recently,” Perry said in a statement today. “We will continue fighting to implement the laws passed by the duly-elected officials of our state, laws that reflect the will and values of Texans.”

Senator Ted Cruz of Texas, a prospective Republican presidential candidate, said in a statement, “I hope the Fifth Circuit will uphold Texas’s reasonable law protecting the health of Texas women and unborn children,” referring to the U.S. Court of Appeals in New Orleans.

State’s Appeal

“The state has already appealed the court’s ruling,” Lauren Bean, a spokeswoman for the attorney general, said in a statement. “As everyone -- including the trial court judge -- has acknowledged, this is a matter that will ultimately be resolved by the appellate courts or the U.S. Supreme Court.”

The lawsuit was filed by the New York-based American Civil Liberties Union and the Center for Reproductive Rights.

Those organizations, in a statement issued jointly with Planned Parenthood, applauded Yeakel’s decision on the hospital-affiliation rule, while criticizing his decision to let the bulk of the drug-induced abortion restriction stand.

“Today’s decision has averted a catastrophic health crisis for women across the state of Texas,” President Nancy Northup of the Center for Reproductive Rights said in a statement. “Politicians, not doctors, pushed for both these unconstitutional restrictions -- despite the best medical standards for women’s health care.”

ACLU Disappointed

“We are disappointed by the ruling on the medication abortion restriction, which ignores accepted medical practice and will force providers to use less safe methods,” said Louise Melling, deputy legal director for the ACLU.

The groups contended the requirements threatened women’s abilities to obtain the constitutionally protected procedure in large swaths of the second-biggest U.S. state. Proponents of the legislation said they were necessary to protect women’s health.

Witnesses who testified for Planned Parenthood included a doctor who performs abortions, a University of Texas demographer and the founder of a company that operates women’s health clinics in five Texas cities.

The state presented no witnesses, relying instead on court filings, cross-examination of Planned Parenthood witnesses and oral arguments.

Yeakel said at the beginning that his role wasn’t to decide whether women should be allowed abortions. The issue before him, he said, was whether the challenged legislation fell within “existing constitutional confines.” He returned to that theme in today’s ruling.

Divisive Issue

“There is no issue that divides the people of this country more than abortion,” he wrote. “Sincere and caring persons of good will are found on both sides of the issue, but neither side will ever change the position of the other.”

The legislation required a doctor performing an abortion to have admitting privileges at a hospital within 30 miles (48 kilometers) of the clinic.

It also effectively barred drug-induced abortions after the seventh week of a pregnancy, citing the on-label use authorized by the U.S. Food and Drug Administration. Planned Parenthood contended the limited approved use, adopted in 2000, is outdated.

Two drugs that will induce an abortion when used in combination are typically taken a day or two apart, according to court papers. The first, Mifepristone -- also known as RU-486 or Mifeprex -- is typically administered by a doctor.

The drug is the only one approved for ending pregnancies. Doctors can legally prescribe it for uses beyond the one it’s approved for, as with any prescription medication.

Law’s Impact

The second, Misoprostol, also called Cytotec, can be taken by a patient at the time and place of her own choosing, a practice that would be ended by the new law, according to Planned Parenthood’s complaint.

“The evidence demonstrates that the privilege requirement will not enhance the safety of women” seeking abortions, Planned Parenthood lawyer Janet Crepps said Oct. 23 in closing arguments. Thirteen clinics would no longer be able to provide abortions under the law, she said.

Women living in rural West Texas might be forced to drive more than 300 miles to El Paso or Dallas, Crepps said.

Several cities, including Fort Worth and Lubbock, would be completely without abortion services, she said.

Texas Deputy Solicitor General Andrew S. Oldham in his closing remarks, told Yeakel that the plaintiffs had the “extraordinarily high” burden to prove the contested provisions are unconstitutional and that they had failed to meet that challenge.

Unsupported Claims

He said the abortion-rights group’s claims were unsupported by economic data. Doctors would have recourse under state law if they were denied admitting privileges because they perform abortions, he said.

“Plaintiffs cannot prove an undue burden by pointing to a fear of discrimination,” Oldham said.

Yeakel rejected the state’s contention in his ruling today, finding that the admitting-privileges requirement would force many abortion clinics to close.

“The record reflects that 24 counties in the Rio Grande Valley would be left with no abortion provider because those providers do not have admitting privileges and are unlikely to get them,” he wrote.

The judge largely rejected challenges to the drug-induced abortion restrictions. He said that while the FDA-tied protocol is “clearly more burdensome” because it requires an additional trip to the doctor and additional costs, the plaintiffs hadn’t proved the burden was so great the law needed to be invalidated in all instances.

Long-Term Issue

Courts and legislatures will continue to grapple with abortion rights for the foreseeable future, the judge forecast.

“No ruling of this court will sway the opinion regarding abortion held by anyone,” said Yeakel, an appointee of Republican President George W. Bush.

The case is Planned Parenthood of Greater Texas Surgical Health Services v. Abbott, 13-cv-00862, U.S. District Court, Western District of Texas (Austin).

To contact the reporters on this story: David Montgomery in federal court in Austin ; Andrew Harris in federal court in Chicago at aharris16@bloomberg.net.

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net.


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