Judge Rules Parts of HB 2 Unconstitutional

U.S. Judge Lee Yeakel

In a much anticipated ruling, U.S. District Judge Lee Yeakel has struck down parts of Texas’ abortion law, finding the regulations unconstitutional. The effect of the law - predicted to shutter all but six clinics in Texas - places an “undue burden on women” wrote Yeakel in his 21-page opinion.

House Bill 2, Texas' package abortion law, passed in mid-2013 and effective since last November, bans abortion after 20 weeks of pregnancy, forces patients to follow outdated methods when undergoing pharmaceutical abortions, and requires physicians to obtain admitting privileges at a hospital within 30 miles of where any procedure is performed. The final provision, set to take effect this Monday, Sept. 1, mandates that clinics spend up to $3 million to comply with the same building standards as ambulatory surgical centers. Clinic leaders consider the requirements (such as widening hallways and constructing janitorial closets) a medically unjustified attempt to eliminate abortion services. Reproductive health experts estimate that less than 10 clinics will remain open to serve the entire state if the law is enacted.

Abortion providers, represented by the national Center for Reproductive Rights and local law firm O'Connell & Soifer, filed suit in April to address the ASC requirement, and challenged the admitting-privileges rule for two clinics in underserved communities – the Whole Woman's Health clinic of McAl­len and Reproductive Services of El Paso.

The ASC requirement, writes Yeakel, “burdens Texas women in a way incompatible with the principles of personal freedom and privacy protected by the United States Constitution for the 40 years since Roe v. Wade.” (However, it should be noted, the ruling does not apply to ASCs currently licensed or to new abortion providers that will begin offering abortion services after Sept. 1.) Many of the building standards required by the act have, “such a tangential relationship to patient safety in the context of abortion as to be nearly arbitrary,” wrote Yeakel. Furthermore, the court concluded the law’s goal of “improving women’s health” - continually pushed by anti-abortion advocates and the state in defense of the HB 2 - is unlikely.

The judge takes into account socio-economic factors limiting abortion access, such as lack of availability of child care, unreliability of transportation, unavailability of appointments at abortion facilities, time off from work, immigration status, inability to pass border checkpoints and poverty level, time and expense involved in traveling long distances. These barriers, especially combined with the increased distance to obtain abortion as a result of HB 2, will pose a substantial burden to women. He notes women in the border region will be hit hardest by abortion regulations.

Even if the remaining clinics could meet the demand imposed by closed clinics as a result of House Bill 2, the court concludes that the practical impact on Texas women, “would operate for a significant number of women in Texas just as drastically as a complete ban on abortion.”

And the impact of these provisions together, “create an impermissible obstacle as applied to all women seeking a previability abortion,” wrote Yeakel today.

Attorney General Greg Abbott is expected to swiftly appeal the ruling.

“This trial and today’s decision have stripped away the pretexts of the politicians who passed this law and revealed their true intention to deny Texas women access to safe, legal abortion care,” said Nancy Northup, president and CEO of the Center for Reproductive Rights in a release.

To date, the restrictions in HB 2 have wiped out half of the state's abortion-care clinics and increased the number of women who must travel hundreds of miles for services.

The roughly five-day trial began Aug. 4 and ended with closing arguments on Aug. 13. While plaintiffs argued the legislation poses an "undue burden" on abortion-seeking women, by requiring them to travel long distances for care, and imposing medically unnecessary facility standards. Also, they argued, it will cause a "public health catastrophe" by eliminating abortion access in most parts of the state. On the other end, state defendants' counsel responded that the law will not impose a substantial burden on women, who will still be able to obtain access to seven clinics.

The state saw censure from Yeakel for attempting to “conceal” the involvement of paid consultant Vincent Rue, a discredited anti-abortion advocate who helps draft and edit witness testimony in other states. While state witnesses claimed they had not been influenced by Rue, it became clear from e-mail exchanges produced by plaintiffs that Rue played a significant role in crafting witness testimony in support of the law.

Yeakel renewed his criticism in writing: "The court finds that, although the experts each testified that they personally held the opinions presented to the court, the level of input exerted by Rue undermines the appearance of objectivity and reliability of the experts' opinions,” he wrote in a footnote. “Further, the court is dismayed by the considerable efforts the State took to obscure Rue's level of involvement with the experts' contributions.”

Abortion clinics (including Planned Parenthood) first filed a legal challenge to stop the hospital admitting privileges and pharmaceutical abortion restrictions last September. Yeakel ruled the first section unconstitutional and without a “rational basis,” but the state appealed, sending the case to a three-judge panel on the 5th Circuit, which agreed with the state. Providers have asked the full court to rehear the case and now await a response.

The effects of the law have been devastating to the reproductive health network, say clinic leaders. In 2012 there were 44 abortion clinics in Texas; as providers braced for HB 2, the number dropped to 34. After the law was initiated, by November 2013, 24 clinics remained. Today, the number fluctuates between 20 and 24, as a few clinics have closed and then reopened. Only five Texas cities – Dallas, Fort Worth, San Antonio, Austin, and Houston – have clinics guaranteed to remain open.