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New HB 2 Suit Challenges Regulations That Could Shutter All But Six Texas Clinics

Suit seeks to block enforcement of two provisions

By Jordan Smith, 8:08AM, Thu. Apr. 3

New HB 2 Suit Challenges Regulations That Could Shutter All But Six Texas Clinics
Illustration by Jason Stout

Just less than a week after an appeals court upheld two provisions of the controversial House Bill 2, abortion providers on Wednesday filed a second lawsuit attacking the bill's hospital admitting privileges provision, and challenging the legality of a requirement that all clinics comply with standards devised for surgical centers.

The lawsuit – filed yesterday afternoon by lawyers with the Center for Reproductive Rights on behalf of Whole Woman's Health, Abortion Advantage, Austin Women's Health Center, Killeen Women's Health Center, and a group of abortion-providing doctors – seeks an immediate court order to block enforcement of the admitting-privileges provision as applied to Whole Woman's Health in McAllen and Reproductive Health Services in El Paso.

The provisions of HB 2, passed by Texas lawmakers during a special session last summer target "abortion providers for the imposition of unique regulatory burdens that are not imposed on any other health care providers in Texas, are inconsistent with accepted medical standards, impose costs that are far in excess of any potential benefit, and will dramatically reduce the number and geographic distribution of medical facilities in the State," reads the lawsuit.

Indeed, Whole Woman's Health announced last month it has been forced to shutter its McAllen operations precisely because it had been unsuccessful in obtaining admitting privileges for its doctors, as required by HB 2. The closing of that clinic has left women in the Rio Grande Valley without an abortion provider. The closest facility is now in Corpus Christi, roughly 150 miles away. Similarly, while a doctor for the El Paso clinic currently has admitting privileges, they're set to expire in May, which would leave all of West Texas from IH-35 to the New Mexico border without a single abortion provider.

The previous suit, filed last fall, argued that the admitting-privileges provision is unconstitutional on its face, and would unduly burden and irreparably harm every clinic and woman seeking abortion in Texas. After an October 2013 trial, Judge Lee Yeakel agreed that provision had no rational basis and created an unconstitutional burden on women seeking care. The 5th U.S. Circuit Court of Appeals immediately stayed his order and last week issued its full ruling, opining that lengthy travel for women seeking care didn't present an undue burden thanks to Texas' highway system.

The new suit attacks the admitting-privileges provision again, this time specifically as to the undue burden it creates for women in the RGV and in West Texas where there will remain no providers if the provision is allowed to remain in effect. For women in West Texas this would mean round-trip travel of more than 1,000 miles in Texas to access care and more than 500 miles round trip if women are forced across state lines into New Mexico, Nancy Northup, president and CEO of the Center said during a press conference.

According to the lawsuit, the McAllen clinic has performed more than 14,000 abortions over the last decade. Only two of those patients needed transport to a hospital from the clinic. More than 17,000 abortions have been performed at the El Paso clinic over the last decade; not a single patient required transport to a hospital.

Indeed, at the time HB 2's admitting-privileges provision took effect, both the McAllen and El Paso clinics had in place protocols to handle medical emergencies and were in compliance with a 2009 regulation that required clinic doctors either to have admitting privileges or to have a relationship with a doctor with privileges at a local hospital. That regulation, notes the lawsuit, has "never been challenged in litigation."

The new lawsuit also attacks a provision of HB 2 that requires by Sept. 1 that all abortion clinics transform themselves to meet regulations devised for ambulatory surgical centers – day-surgery centers that are essentially mini hospitals. The regulations cover everything from the width of hallways to the configuration of required janitor closets. Abortion providers and women's health advocates have warned that it is unnecessary to regulate abortion clinics in this manner, for a procedure where no anesthesia is given and no incisions are ever made, unlike in many of the procedures routinely conducted at ASCs.

According to the lawsuit, bariatric surgery, vaginal hysterectomy, and colonoscopy, are examples of procedures that are more risky than abortion, but that are not required by the state to be performed at facilities that meet ASC standards; indeed, the risk of death during childbirth is 14-times greater than the risk of death from abortion, yet outpatient birthing centers are not required to meet ASC standards. "Apart from abortion procedures, Texas law does not require any other outpatient surgical or medical procedures to be performed in an ASC," reads the suit.

Abortion providers argue that to meet the regulations would take expensive physical plant renovation that would likely pose too costly for small providers that perform the majority of abortions in Texas.

If those clinics are unable to comply with the regulations – which lawmakers have insisted would somehow increase women's health and safety – the state could be left with just six clinics statewide, all of them clustered along the IH-35 corridor and in Houston. That would leave thousands of women without meaningful access to legal care, Northup said in a press release. "If these legislative attacks on women’s health care continue to take effect, fewer than 10 clinics will be available to provide abortion care to Texas’s 13 million women," she said. "There is no question that the politicians who passed this law intended this as the final blow in their assault on women’s constitutional right and ability to safely and legally end a pregnancy in Texas."

Amy Hagstrom Miller, founder and CEO of Whole Woman's Health, said that providers have worked diligently to comply with restrictions each time Texas lawmakers have imposed new obstacles to care, but that their efforts "have gotten us nowhere," she said, and every year "Texas women face new barriers" to accessing legal abortion care. In 2012, she noted, there were 44 licensed abortion providers across the state. After the provisions of HB 2 took effect last fall, just 24 clinics remained.

In fact, said Northup, it is clear that Texas lawmakers who support the provisions of HB 2 never intended that abortion providers would "be able to comply with the law. But it's the women of Texas who will suffer."

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