Key parts of Texas abortion law overturned

08/29/2014 5:27 PM

08/29/2014 5:29 PM

A federal judge invalidated two major Texas abortion regulations Friday — including one that would have shut down 19 licensed clinics next week — ruling that they created “a brutally effective system” designed to close abortion facilities, not to improve women’s health as state lawyers had argued.

U.S. District Judge Lee Yeakel of Austin ruled that the two key provisions in House Bill 2, passed last summer in the second of two raucous special legislative sessions, imposed an impermissible burden that blocked access to abortion for “women throughout Texas.”

“When the two provisions are considered together, they create a scheme that effects the closing of almost all abortion clinics in Texas that were operating legally in the fall of 2013,” Yeakel said.

Texas Attorney General Greg Abbott promised a swift appeal Friday, and abortion opponents predicted Yeakel’s ruling will be overturned by the 5th U.S. Circuit Court of Appeals, which has already upheld portions of HB 2.

“The state disagrees with the court’s ruling and will seek immediate relief from the 5th Circuit,” Abbott spokeswoman Lauren Bean said.

Yeakel struck down one HB 2 provision, set to take effect Monday, that would have required abortion clinics to meet the same standards as ambulatory surgical centers.

The rule would have left no abortion clinics operating in Texas south or west of San Antonio. Seven abortion clinics are licensed as ambulatory surgical centers — with an eighth under construction — in the state’s four largest metropolitan areas: Austin, Houston, San Antonio and Dallas-Fort Worth.

Yeakel also struck down an HB 2 provision requiring abortion doctors to gain admitting privileges in a nearby hospital. About half of the state’s abortion clinics were forced to shut down since the regulation went into effect Nov. 1 because many hospitals declined to grant privileges, the judge said.

Amy Hagstrom Miller, chief executive of Whole Woman’s Health, which operates abortion clinics in Fort Worth and San Antonio and was a plaintiff in the suit, said in a statement: “We are extremely pleased by Judge Yeakel’s ruling today. As he clearly states in his decision, requiring every abortion clinic to turn into a surgical center is excessive and not based on good medicine.”

Yeakel’s decision followed recent legal victories across the South for abortion-rights advocates, as federal courts have blocked measures that would have forced the closing of the only abortion clinic in Mississippi and three of five clinics in Alabama. And it reflects the still-charged legal and political environment surrounding abortion in the face of restrictions enacted by Republican-led legislatures across the nation in recent years.

Adopted as part of a sweeping anti-abortion measure last year, the rule would have forced the closing of more than a dozen of the Texas’ remaining abortion clinics because they were unable to afford to renovate or to open new facilities that met the standards for such things as hallway width, ceiling height, advanced ventilation equipment, staffing and even parking spaces.

The closings would have left Texas — the second-biggest state in the country by population as well as by size — with seven or eight abortion clinics, all of them in major cities like Houston and Dallas. Women seeking abortions in El Paso in West Texas and in the Rio Grande Valley in South Texas would have lived more than 150 miles — a distance ruled constitutional by a federal appeals court — from the closest clinic, in San Antonio.

But state officials and other supporters of the abortion law in Texas were confident that they would prevail on appeal.

Last year, Yeakel stayed enforcement of another provision of the 2013 law — a requirement that doctors performing abortions obtain admitting privileges at a hospital within 30 miles of their clinic — but the U.S. Court of Appeals for the 5th Circuit, in New Orleans, reversed his decision. The appeals court ruled that because women in Texas were still within driving distance of clinics, the rule did not impose an “undue burden.”

The admitting-privilege provision has already forced numerous clinics in Texas to close. In part because of the rule, the number of facilities providing abortions in Texas has fallen to 19, from 41 in November 2012.

In the case decided Friday, Yeakel, who was appointed by President George W. Bush in 2003, reinstated a block on the admitting-privileges rule for two clinics — in El Paso and McAllen, in the Rio Grande Valley — saying that the evidence was especially clear that the law’s requirements would substantially reduce access to abortion for women in West and South Texas.

‘A complete ban’

Overall, he concluded, with the additional clinic closures that would have been forced by the surgery-center rule, many more women would be hours away from a clinic.

“Even if the remaining clinics could meet the demand,” Yeakel wrote, the practical impact of the widespread closings, between long travel distances and other logistical impediments facing many women, would be as drastic as “a complete ban on abortion.”

The Texas attorney general, Greg Abbott, who is the Republican candidate for governor, has defended the law and said the distances women would have to travel for abortions posed no unconstitutional burden, arguing that 86 percent of Texas women of reproductive age would live within 150 miles of a clinic if the law were fully in place.

Four clinic operators and the doctors working for them sued the state in federal court, claiming that parts of the abortion law passed by the Republican-dominated Legislature in July 2013 prevented women in largely poor and Hispanic communities from accessing abortion services, even leading some to self-induce abortions with black-market drugs. Other parts of the law, already in effect, bar most abortions after the 20th week of pregnancy and limit the use of nonsurgical, drug-induced abortions.

While Republican legislators and anti-abortion campaigners said the law was needed to protect patients, opponents denounced it as a thinly disguised effort to reduce access to abortions.

Yeakel wrote, “The great weight of the evidence demonstrates that, before the act’s passage, abortion in Texas was extremely safe, with particularly low rates of serious complications and virtually no deaths.”

Fort Worth financing

In a trial in Austin before Yeakel this month, lawyers for abortion providers argued that the cost of building a facility that met the construction standards was more than $3 million. Hagstrom Miller, the chief executive of Whole Woman’s Health, testified that she had tried to obtain financing to buy a $2.3 million surgical-center facility in Fort Worth but had been rejected by more than 15 banks.

James D. Blacklock, a deputy state attorney general, told the judge that the real issue was not that abortion providers could not afford to comply with the law, but that they had chosen not to because they disagreed with it. He assured the judge that women would have access to abortions throughout Texas after the surgical-center rules went into effect.

“This case is really about the effect of the new health and safety regulations on the plaintiffs’ businesses,” Blacklock told the judge.

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