Fifth Circuit Abortion Ruling Harms Women

There were tears at Planned Parenthood's South Austin clinic this morning – from both patients and providers – as hundreds of women across the city were turned away from abortion care by their provider of choice and forced to try to find other access to care, potentially hundreds of miles away.

That was the direct result of the decision Thursday night by a three-judge appeals-court panel to allow a controversial provision of the state's sweeping new abortion regulations to take immediate effect.

"It's so stressful," said Sarah Wheat, vice president of community affairs for Planned Parenthood of Greater Texas, which operates clinics from Dallas to Austin, for patients and caregivers alike. As a result of the ruling, PPGT will have to shutter its abortion operations in Waco, Fort Worth, and Austin – at least for the time being – just three of more than a dozen abortion clinics across the state that today ceased operations, some of which are likely to close for good. "Women are upset; women are confused," she said.

At issue is a provision of the controversial House Bill 2, signed into law in July, that requires abortion-performing doctors to obtain hospital admitting privileges within 30 miles of each clinic where they provide abortion care. Because privileges are designed to ensure quality of care for patients who have procedures performed within the hospital's four walls, and because abortions rarely take place inside a hospital – and at least equally as rarely require admission to a hospital post-procedure – it can be difficult or impossible for abortion doctors to obtain privileges. (Indeed, that was among the arguments cited by the Texas Hospital Association – and ultimately dismissed by lawmakers – in its testimony against the provision this summer at the Capitol.) Although some abortion doctors in the state do have privileges – including at PPGT's Dallas clinic – many do not, and the provision was written in such a way that it did not offer doctors in search of privileges sufficient time to obtain them before the law was to take effect, Oct. 29. HB 2 was codified just roughly three months ago, while existing state law provides hospitals with 170 days from receiving a doctor's application for privileges to decide whether to grant them.

Abortion providers – including Planned Parenthood and Whole Woman's Health, which operates five clinics across the state, one of which is in Austin – and the ACLU challenged the provision in a lawsuit filed in September, seeking to block the provision from taking effect, arguing that it violates due process and equal protection provisions of the Constitution, placing an undue burden on women seeking legal care. If allowed to take effect, women would not be helped, but instead harmed: 13 clinics would immediately cease operations, according to trial testimony, leaving more than 22,800 women without any meaningful access to abortion care. (Looked at another way, if each of those women were forced to carry the birth to term, and if each was paid for by Medicaid – not inconceivable given that more than half of all Texas births are paid for by Medicaid – the one year, basic health care cost to taxpayers would be roughly $246.2 million, based on 2012 Medicaid rates.)

The state countered, however, that in their arguments against the law, the providers accepted a "mistaken premise" that the law was "exclusively" about the health and safety of women, Solicitor General Jonathan Mitchell told federal district Judge Lee Yeakel in his opening statement in court on Oct. 21; the provision, he argued, also serves to "advance the state interest in protect[ing] fetal life."

On Oct. 28, just hours before the law was slated to take effect, Yeakel ruled that there was no "rational basis" for the state to enact the hospital admitting privileges rule and that it imposed an undue burden on women seeking to abort a nonviable fetus, rendering the provision unconstitutional on its face and thus unenforceable.

The state immediately appealed that ruling to the archly conservative 5th U.S. Circuit Court of Appeals, seeking a stay that would allow the provision to take effect pending a full hearing on the matter, arguing in part that by challenging the law before it was able to take effect the plaintiffs couldn't actually demonstrate that any woman at all would be harmed or impacted in any negative way.

In its ruling, the three-female-judge panel concluded that the state would likely win its appeal, and granted the state a stay that allows immediate enforcement of the provision. In concluding thusly, the judges noted that it was the state that would face greater harm if incapable of enforcing the provision before its appeal can be considered by the court in January. "When a statute is enjoined, the State necessarily suffers the irreparable harm of denying the public interest in the enforcement of its laws," three of the court's six active female judges concluded.

That meant that starting this morning, Nov. 1, clinics in Fort Worth, Lubbock, El Paso, McAllen, Austin, Waco, and San Antonio have had to cease providing women with access to legal abortion care. In Austin, that means that Planned Parenthood's South Austin clinic, which provides abortion care up to 20 weeks at its surgical center, will be unable, until further notice, to provide any abortion care. The clinic has a new doctor who has the necessary credentials to obtain hospital admitting privileges, PPGT's Wheat said, but because of the contracted timeline for the provision to take effect, the doctor was not able 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.

In the meantime, more than 100 patients already booked for appointments had to be called, and the confusing situation explained to them. In the interim, the clinic is trying to help all of the women, at various stages in the process, to obtain the care they need.

Because Texas already provides a protracted process in order to obtain care, rescheduling patients across the state is not an easy task. Under state law, women seeking abortion must first be counseled and then wait 24 hours before obtaining services. In the meantime, pursuant to a 2011 law, each patient must also undergo an extra ultrasound examination. So a woman who had already been counseled, received the mandated ultrasound examination, and had returned 24 hours later for the procedure, would now be required to start again – at the beginning – for another round of the same counseling, before being required by the state to undergo yet another ultrasound and a second 24-hour waiting period, before being able to finally obtain the abortion she is seeking.* Because more than a dozen clinics are now prevented from providing care – a number that includes every abortion facility operating west of IH-35 – women across the state will have to find a clinic that can see them, arrange for transportation, and, in many cases, overnight accommodations, in order to obtain services, said Wheat.

For Amy Hagstrom Miller, CEO and founder of Whole Woman's Health, the situation is untenable. "This entire situation has been extremely emotional for not only our patients but for our staff and physicians as well. 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 – have had to cease operations, in just one day leaving 45 women without access to the care they had already scheduled. 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 emailed this morning.

Still, in granting Texas the ability to enforce the law now, the Fifth Circuit judges appear unfazed by the immediate implications. They repeatedly note in their ruling that even without the law there were already obstacles that women seeking abortion would face – so the new law wouldn't be the only problem. Many women already have to travel up to 100 miles to obtain services, the court noted, and if some 90% of women seeking abortion under the new provisions could obtain services by adding just 50 additional miles (one way), the admitting privileges provision couldn't be considered an undue burden, they noted.

More important to the court's decision, it appears, is the assertion that the state has a "substantial" interest "in regulating the medical profession" and an interest in "protecting the integrity and ethics of the medical profession," reads the ruling. The state offered "evidence" that the requirement "fosters a woman's ability to seek consultation and treatment for complications directly from her physician, not from an emergency room provider" and would "assist in preventing patient abandonment" should complications arise. The district court found otherwise, which the appeals court said was "not supported by the evidence, and in any event, 'a legislative choice [to require the privileges] is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data,'" the court concluded.

In arriving at its ruling, the judges appear to have completely ignored Texas' other stated purpose under the law, which, as Solicitor General Mitchell put it, is to "protect" fetal life – an issue that Yeakel directly addressed, and considered unpersuasive at best.

Indeed, under existing U.S. Supreme Court precedent, regulations such as Texas' admitting privileges provision must be vetted for both effect and for purpose. While the Fifth Circuit panel addressed the former, it failed completely to consider the latter – that is, that the state asserts admitting privileges are important to protecting fetal life. That "is a mistake," said Priscilla Smith, director of the Program for the Study of Reproductive Justice at Yale Law School. Put simply, a regulation can't have a purpose to create a substantial obstacle or undue burden on women seeking access to legal abortion care. "That's clearly the purpose here. The purpose is to decrease access to abortion to prevent as many women as possible from obtaining abortion."

The Fifth Circuit is slated to consider a full appeal of the case in January.

*The original version of this story reported that a woman who had already undergone counseling and ultrasound before the injunction was stayed would have to repeat the process and go through another round of counseling and a state-mandated "transvaginal ultrasound" before being able to obtain an abortion. In fact, that is not the case: Texas' ultrasound law mandates an ultrasound, but does not mandate the type of ultrasound examination to be performed, leaving that decision up to a physician. Nonetheless, according to testimony and information provided to lawmakers in 2011, many early-term pregnancies are not viewable unless conducted internally, via transvaginal ultrasound.