With days remaining until new abortion regulations take effect in Texas, attorneys for abortion providers and the state of Texas presented their final arguments Wednesday on whether those restrictions meet constitutional muster.
“The result is much more obvious to each side than it is to me,” said U.S. District Judge Lee Yeakel, who is presiding over a case in which the abortion providers’ attorneys are seeking to block two of the provisions state lawmakers approved in July. “I recognize the clock is ticking toward October the 29th. I think both sides raised strong issues, and I will get a final judgment out as quickly as I can get a final judgment out.”
The plaintiffs, who represent the majority of abortion providers in Texas, including four Planned Parenthood affiliates, Whole Woman’s Health and other independent abortion providers, have asked the court for an injunction to block the implementation of two provisions in House Bill 2 that would take effect Oct. 29: a requirement that doctors who perform abortion have active admitting privileges at a hospital within 30 miles of the facility, and that doctors follow the FDA regimen, rather than a commonly used evidenced-based protocol, for drug-induced abortions.
Yeakel will be the first judge — but probably not the last — to rule on whether the provisions are constitutional. Yeakel, who gave no specific indication Wednesday on when he would rule, said Monday that he expects that whichever side is disappointed with his ruling to appeal the decision, probably all the way to the U.S. Supreme Court.
While the plaintiffs argued that the provisions are unconstitutional because they place an undue burden on women attempting to access the procedure, the state argued that the provisions do not create an undue burden and advance the state’s interest in protecting life. The state hopes the court will rule that the case has no standing, but if the court does grant an injunction, the state cited a severability clause to argue that the injunction could only invalidate the parts of the law the court deemed unconstitutional, not the entire law.
“For over 40 years, the Supreme Court has recognized that states may regulate abortion in order to protect women’s health,” said Janet Crepps, an attorney with the Center for Reproductive Rights who represented the plaintiffs. “But it has also been clear that when a state does so it has to actually protect women’s health rather than hinder it.”
The plaintiffs’ witnesses who testified on Monday and Tuesday demonstrated that admitting privileges do not add to the quality of care a woman receives, Crepps said. The provision could actually harm women, Crepps continued, because a third of the state’s existing abortion facilities do not have doctors with hospital privileges and would be forced to end services. The closure of those 13 facilities would cause 22,000 women to lose access to abortion, she argued, and additional women would face delays in care and greater medical risk.
“What will happen and what won’t happen on Tuesday, I don’t know. And neither do they,” said Andy Oldham, a deputy solicitor general representing the state, who disputed the plaintiffs’ evidence that a third of abortion clinics would close. That claim, which he called the lynchpin of the plaintiffs’ argument, was based on anecdotal evidence provided by the plaintiffs and other abortion providers to a researcher who did not conduct economic or demographic analysis to determine its reliability, he argued. Furthermore, he said the plaintiffs failed to provide specific evidence that doctors could not obtain hospital-admitting privileges, because the plaintiffs did not name the doctors applying for privileges, or the hospitals at which those doctors have applied or attempted to apply for privileges.
Oldham emphasized that Texas law and federal law prohibit discrimination against doctors who perform abortions. “It’s difficult to imagine what more the state could do to ensure that abortion providers are able to get admitting privileges on the same equal footing as other doctors,” Oldham said.
Texas has given abortion providers 90 days to obtain hospital privileges to meet the requirements of the new law, but state law allows hospitals 170 days to notify physicians after the whole application is received, and the plaintiffs presented evidence that hospitals could take weeks or months to respond to a request for an application. The doctors at Whole Woman’s Health that have applied for privileges have not received a response from any hospitals yet, according to testimony from the corporate vice president of Whole Woman’s Health.
Hospitals set criteria for admitting privileges based on business interests, said Crepps, therefore the application process for privileges is not an adequate gauge of whether a physician is qualified to perform an abortion. “In fact, it is because abortion care is so safe with so few admissions that some physicians won’t be able to get privileges,” she said.
Crepps also argued that the evidence-based protocol for drug-induced abortions, which has been the subject of multiple studies, is the most commonly used and safe method, and in some cases, is more effective than the regimen set forth by the FDA. The FDA protocol does not require physicians to use the regimen on the medication’s label.
“There is no justification for denying women access to the best medical care available,” Crepps said. She emphasized that the Supreme Court has never approved a complete ban on abortion in the first trimester, and in essence, requiring physicians to follow the FDA regimen for drug-induced abortions would ban the procedure after 49 days.
Citing the Supreme Court case Gonzales vs. Carhart, Oldham argued that some medical professionals might prefer a particular abortion method or believe one method is safer than another, but that is not enough to guarantee constitutional protection to use that method. He said misuse of the medication could cause birth defects, and there is no evidence that requiring an additional trip to the clinic — as the FDA regimen requires — would present more of an undue burden on the woman than previous trips to the clinic.
“The state of the science and the FDA’s approvals are not Texas’ fault,” said Oldham. “Plaintiffs cite nothing, they cite nothing to suggest that the 14th Amendment somehow compels the state to go where the FDA has not gone and has not even been asked to go.”