Tears for Texas Women

Demonstrations opposing HB 2 (Photo by Jana Birchum)

As of Tuesday, Oct. 29, unless a federal judge blocks implementation of Texas' sweeping new abortion regulations, 13 clinics across Texas – including Planned Par­ent­­hood in Austin – will be unable to provide women with safe and legal abortion care. The new regulations, contained in recently passed House Bill 2, would quickly leave more than 22,000 women without any meaningful access to care, Janet Crepps, a lawyer for the Center for Reproductive Rights, argued in federal court Wednesday morning. Closing the state's defense, Deputy Solicitor General Andy Oldham argued that the providers and doctors suing for relief have failed to meet the "crushing [legal] burden" of proving that the provisions would actually have the impact they are asserting.

Federal District Judge Lee Yeakel said he will issue a ruling in the case "as quickly as I can," and that he recognizes "the clock is ticking." There is little doubt that whoever loses will appeal the decision to the 5th U.S. Circuit Court of Appeals – and potentially to the U.S. Supreme Court – as Yeakel noted several times during the trial. Similar provisions have been successfully challenged in a number of states – including in Oklahoma, Mississippi, Alabama, Wiscon­sin, and North Dakota.

Amy Hagstrom Miller, founder and CEO of Whole Woman's Health, which operates five abortion clinics across Texas, was the last of five witnesses to testify in person during the two-day trial. At issue in the lawsuit – brought by WWH, Planned Parent­hood, and the ACLU, among others – is whether portions of the controversial HB 2 violate constitutional due process and equal protection provisions and create an undue burden on women seeking legal abortions. Specifically, the suit challenges a provision that would require all abortion doctors to obtain hospital admitting privileges within 30 miles of each clinic where they provide the procedure, and a mandate that doctors follow an older, FDA-approved protocol for administering medication abortions.

Hagstrom Miller testified that if the admitting privileges provision goes into effect, she'll have to close three of her five clinics – in Fort Worth, McAllen, and San Anton­io – because the doctors working there do not have local privileges. In all, 13 clinics across the state will lack doctors with admitting privileges, and will thus be out of business. Arthur D'Andrea, a state assistant solicitor general, asked Hagstrom Miller a series of questions about the economics of the clinics, the point of which seemed to be that if the clinics in jeopardy of closing did an "economic assessment" of their operations they would discover they have plenty of money to continue operations. Of course, hospital admitting privileges can't be purchased.

Andrea Ferrigno, vice president of WWH, choked up while on the stand, talking about how women in the Rio Grande Valley will be left without access to safe, legal abortion services. "I'm very concerned in general, but the tears come because of McAllen," where she lived for 13 years.

According to testimony from UT-Austin demographer, professor Joe Potter, who works on the Texas Policy Evaluation Proj­ect, if the provisions take effect as planned next week, 10 clinics will close right away, leaving more than 22,000 women in need of care but without access. The state has countered that the provisions are not only designed to protect the health and safety of women seeking abortion, but also to protect "fetal life." Jonathan Mitchell, solicitor general, said the state doesn't have to prove these provisions are medically necessary, and has the authority to impose reasonable restrictions in order to protect a state interest – in this case, discouraging more abortions.

According to Potter, just 18 Texas counties currently have an abortion provider; if the admitting-privileges provision of HB 2 takes effect, that number would shrink to just seven counties, leaving thousands of women across the state with limited access and requiring them to travel hundreds of miles for care. Deputy Attorney General John Scott noted that nationally, 94% of women report having to travel up to 100 miles to receive care – suggesting that the the burden in Texas won't be any greater than in any other state.

Nonetheless, according to Dr. Paul Fine of the Baylor College of Medicine, medical director for Planned Parenthood of the Gulf Coast, 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.

Judge Yeakel has said he will issue a ruling in the case before Oct. 29, when the law is scheduled to take effect.

For much more on the HB 2 trial, see the News­desk blog for Oct. 21-23, at austinchronicle.com.