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UDATED: Abortion Regulations Trial Begins in Federal Court

Contested provisions set to take effect Oct. 29

By Jordan Smith, 7:09PM, Mon. Oct. 21, 2013

UDATED: Abortion Regulations Trial Begins in Federal Court
Photo by Jana Birchum

UPDATE: According to research from the Texas Policy Evaluation Project, if provisions of the sweeping and controversial abortion regulations law passed this summer take effect as planned next week, more than 22,000 women seeking abortion will be left without access to care, UT professor Joe Potter testified today in federal court.

Potter, a demographer working in UT's sociology department, and one of the principle investigators in the TxPEP, created to track access to family planning in Texas after the drastic 2011 family planning budget cuts and passage of the mandatory ultrasound-before-abortion law, was the third witness to testify during a trial that began Monday in federal court, challenging implementation of two provisions of House Bill 2, passed by lawmakers during a third-called special session this summer.

The lawsuit, filed by a number of providers across the state – including Planned Parenthood of Greater Texas and Whole Woman's Health, both of which provide abortion care in Austin – challenges as unconstitutional a provision of the law that requires abortion doctors to have hospital admitting privileges within 30 miles of each clinic where they perform abortions, and a provision that would mandate a certain protocol for administering pharmaceutical abortion. That provision would require a doctor to dispense, in person, both drugs taken to induce abortion, in accordance with the drug's Food and Drug Administration-approved label, drafted in the Nineties.

The providers bringing the suit argue that the provisions are unnecessary and violate due process and equal protection provisions of the Constitution by placing an undue burden on women seeking legal abortion care.

According to Potter, just 18 Texas counties currently have an abortion provider; if the hospital-admitting privileges provision of HB 2 takes effect on Oct. 29, as planned, that number would shrink to just 7 counties, leaving thousands of women across the state with limited access and requiring them to travel hundreds of miles, at considerable time and expense, in search of care. Potter said that the law would more than double the number of women who have to travel at least 100 miles to receive care.

If the law takes effect, clinics will close and the number of women seeking care will "greatly outstrip [state] capacity for the provision of abortion care, on the order of [more than] 22,000 women," he testified.

Potter said the TxPEP research into the reduction in access is based on clinic surveys and information provided to researchers by the abortion providers bringing the lawsuit.

Deputy Attorney General John Scott in lengthy cross examination this afternoon suggested that Potter didn't really know what would happen to clinics after the law passes – he hasn't conducted any economic impact research, he noted. Moreover, Scott noted that nationally 94% of women report having to travel up to 100 miles to receive care – suggesting that the imposition of the burden in Texas is not any more than in any other state. (He noted that after the law takes effect, based on TxPEP numbers, only 91% of women would have to travel that far to receive services.)

Nonetheless, according to the day's first witness, Dr. Paul Fine, medical director for Planned Parenthood of the Gulf Coast and a faculty member at Baylor College of Medicine who also has admitting privileges at Houston's Ben Taub Hospital, the admitting-privileges provision and the pharmaceutical abortion requirements are "absolutely not" necessary, would pose a hardship to women seeking care and would turn the clock back decades for women seeking access to safe, and legal, abortion care.

Admitting privileges are not necessary to ensure the health or safety of women because any woman experiencing complications from an abortion would be directed to go to the nearest emergency room – which, given the distances involved in accessing care, would not likely be the hospital where their doctor actually had privileges. And it can be difficult for abortion doctors to secure hospital admitting privileges since those are granted to doctors performing procedures inside a hospital's four walls, and abortion care is rarely provided in a hospital setting, he said.

Indeed, Dr. Jennifer Carnell, an emergency room physician at Ben Taub who has worked in five different ERs over nine years, said she has only seen women with complications from abortion a handful of times during her career. In none of those cases did she talk, or need to talk, to the doctor who performed the abortion. Carnell said that emergency medicine doctors are regularly confronted with the kinds of complications seen in abortion – including possible infection or sepsis – and are trained to handle them. Carnell said that almost daily she sees women who have miscarried and are experiencing the kind of pain and vaginal bleeding that could also be experienced by women who've had induced abortions. Emergency room doctors are trained "never to rely on outside information" – including from the doctor who treated the person – in order "to treat a patient," she testified.

But would a doctor having admitting privileges mean that woman would receive less care in an ER, Scott asked.

No, Carnell replied.

As to the using the older, "on-label" protocol for administering pharmaceutical abortion, Fine testified that method is actually more complicating than newer, "evidence-based" medicine that has evolved since abortion-inducing drugs were approved by the FDA.

In fact, Fine said that the original use of the drugs in question were based on a smaller study, in the mid-Nineties, in which he and PPGC participated, of just roughly 2,500 women. In the last decade, and with the so-called "off-label" protocol that the state wants to ban, more than 1.75 million women have received the drugs, and with fewer complications than with the original protocol, he said. Since the newer protocol was adopted, during the middle of the last decade, there have been no deaths associated with it's use, he said.

The FDA-approved protocol calls for an unnecessarily higher dose of one of the drugs, and requires both of two medications to be administered in person. In Texas, with requirements that women now receive mandatory ultrasound and "counseling" prior to receiving abortion care, enforcing the older protocol would mean that women seeking earliest-term abortions (currently, up to nine weeks into pregnancy) would need to make four visits to a provider. The newer protocol only requires a woman to take the first drug under a doctor's supervision; women are then sent home with the second drug to take when they're ready, Fine said.

On cross examination, Scott noted that the provision of HB 2 concerning medication abortion would only add one additional clinic visit. He then challenged Fine with a series of state-mandated reports that suggest there have been complications from the modern protocol (and also suggesting that Fine's credibility is in question because of how those abortion reports are compiled by the clinics he oversees.)

The reports demonstrate that there "are issues" with medication abortion, Scott told Judge Yeakel.

Redirecting the witness, attorney Helene Krasnoff, who represents Planned Parenthood, noted that of the hundreds of reports Scott brought to court that day (one set of which also provide personal information about women who have sought abortion in Texas – including their age, marital status, race, county of residence, number of previous live births, and numbers of abortions), there were complications in just three out of more than 260 abortions administered at one clinic and just seven cases with medication abortion complications out of more than 2,500 abortions at another.

Testimony in the case continues tomorrow, Tuesday, Oct. 22.

EARLIER:The issues presented to federal district Judge Lee Yeakel during a trial concerning Texas' new sweeping abortion regulations will not "be decided definitively by this court." It will be up to the 5th U.S. Circuit Court of Appeals, and ultimately, the U.S. Supreme Court to determine whether Texas may so restrict women's access to the procedure.

As such, Yeakel said this morning, he isn't interested in dallying: No arguing about whether abortion is right or wrong, and no testimony about witnesses personal feelings about the matter. "Get to the point," he told lawyers from the attorney general's office and for the abortion providers – including Planned Parenthood and Whole Woman's Health – who are challenging two provisions set to take effect Oct. 29.

At issue in the suit are a provision that requires abortion-performing doctors to have hospital admitting privileges within 30 miles of each facility where they perform abortion and a provision that would require doctors to follow a specific protocol when administering pharmaceutical abortion.

What Yeakel wants to hear from the lawyers is whether or not the provisions of House Bill 2, passed into law this summer, fall under current Supreme Court precedent that protects a woman's right to abortion, allows some restriction where there is be a compelling state interest to do so, but without imposing an undue burden on women.

The providers argue that the restrictions at issue would reduce drastically the number of physicians able to provide the procedure and would cause clinics across the state to shutter operations, leaving no abortion provider available in the state west of IH-35, forcing women to travel great distances and at great personal expense in search of care.

In his opening statement, Solicitor General Jonathan Mitchell argued that the plaintiff providers' arguments are built on the "mistaken premise" that lawmakers passed HB 2 "exclusively" to protect the health and safety of women. The law is "also" serving "to advance the state interest in protect[ing] fetal life," MItchell – one of 10 male lawyers on the state's 11-member legal team – said. As such, the state doesn't have to prove that the provisions are "medically necessary" in order to prevail – moreover, Mitchell said, the plaintiffs haven't provided "any evidence, let alone proof" that clinics would close or women would be left without access. The plaintiffs want the court to "assume" that's the case, but the "court cannot resolve the case by assuming facts not yet proven."

The case continues this afternoon.

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