HB 2 Heads to Supremes – As Texas Leaps Backward 30 Years

Anti-HB 2 demonstrators at the Capitol (Photo by John Anderson)

Until at least Nov. 12, the new Texas abortion restrictions are in the hands of the U.S. Supreme Court Justice Antonin Scalia. Scalia has ordered the state of Texas to respond by Nov. 12 to an appeal filed by abortion providers who have sued the state to block implementation of the controversial requirement from House Bill 2 that abortion doctors have admitting privileges in nearby hospitals (see "Yeakel: HB 2 Unconstitutional – In Part," Nov. 1). On Monday, lawyers for a coalition of providers appealed to the Supreme Court, asking that it step in to vacate an Oct. 31 lower court ruling that allowed the provision to take immediate effect, blocking hundreds of women from access to safe abortion care.

The admitting-privilege provision went into effect Nov. 1 after a three-judge panel of the 5th U.S. Court of Appeals in New Orleans vacated the decision of federal district Judge Lee Yeakel, who had ruled Oct. 28, after a three-day trial, that the provision is unconstitutional. Scalia will determine whether to reverse the Fifth Circuit and allow the lower court ruling to stand until after the appeals court considers a full appeal of the case in January. (As the judge assigned to the Fifth Circuit, Scalia could make this decision himself or could ask the full court to weigh in. If he denies the providers' appeal, they may turn to another member of the court for reconsideration.)

In the meantime, imposition of the provision in Texas is "wreaking havoc on the lives of women and their families" and on abortion providers across the state, said Louise Melling, deputy legal director for the ACLU, which with Planned Parenthood, Whole Woman's Health, and other abortion providers sued Texas to block the provision from taking effect as of Oct. 29.

During a Monday morning press call, providers and lawyers reiterated that clinics across the state have had to cease providing abortions while they wait to find out if their doctors will be granted admitting privileges at any number of hospitals. Amy Hagstrom Miller, founder and CEO of Whole Woman's Health, which has five clinics across the state – three of which are now incapable of providing abortion care because of the law – said that by her count, 14 clinics in Texas have now stopped providing care, and are having to turn away patients who had already scheduled appointments to receive the procedure before the Fifth Circuit intervened Halloween night – leaving, in just the first days, hundreds of women without access to safe and legal care.

Marni Evans is one of those women. Evans, 37, had already received the mandatory state counseling, mandatory ultrasound examination, and had waited the requisite 24 hours before obtaining the procedure when she found out – via voice message Thursday night – that the procedure she had scheduled for Nov. 1 at the Planned Parenthood clinic in South Austin would not happen. She hadn't been following news about the legal dispute, and was shocked to hear that the state had taken away her right to make what she said was a difficult decision, but one that she and her fiancé concluded was right for them. "That decision was taken out of our hands," she said Monday morning. "I was devastated. ... I had no idea what to do next."

Evans, eight weeks pregnant as of Mon­day, said that in order to obtain services in Texas she would not only have to find a new provider – with providers quickly being overwhelmed by the number of women who need access – but also, because of the requirements of state law, would have to begin again at the beginning, with another round of required counseling and another state-mandated ultrasound examination, followed by another 24-hour waiting period. Evans has instead decided to cash in frequent-flier miles that she was saving for her honeymoon and has made arrangements to travel to Seattle, where she previously lived, in order to obtain services at a Planned Parenthood clinic there. Evans said she is fortunate, unlike many other Texas women, to have the resources to take such drastic action.

Beginning Friday morning, Nov. 1, clinics in Fort Worth, Lubbock, El Paso, Austin, McAllen, Waco, and San Antonio had to cease providing abortion care. In Austin, PP's South Austin clinic, which provides abortions up to 20 weeks at its surgical center, will be unable until further notice toprovide any abortion care. The clinic has a new doctor who has the necessary credentials to obtain hospital admitting privileges, said Sarah Wheat, vice president of community affairs for Planned Parenthood of Greater Texas, but because of the contracted timeline for the provision to take effect, the doctor was unable to obtain privileges in time to avert the clinic shutdown. Wheat is confident that the privileges will be granted and that the clinic will eventually be able to resume services.

"This entire situation has been extremely emotional for not only our patients but for our staff and physicians as well," said Hagstrom Miller. "It's like they are going through a state of mourning." Today three of Hagstrom Miller's five Texas clinics – in McAllen, Fort Worth, and San Antonio – ceased operations, in just one day leaving 45 women without access to already-scheduled care. The clinics have had several "devastated" patients who don't know what they'll do now because they have no means to travel for services, Fatimah Gifford, head of public relations for WWH said in an email. "It's a sad and dark day for women in Texas; we have regressed backwards about 30 years," Hagstrom Miller said in a press statement.

"Last week's court decision allowing this extrememeasure to take effect has already begun to hit the state of Texas like a tsunami, taking away vital health services from women," Melling added in a press statement emailed Monday morning. "The women of Texas are counting on the Supreme Court to ensure they have access to the care they need."

For more on the HB 2 legal situation and related news, see the ongoing Newsdesk blog coverage at austinchronicle.com.