Testimony regarding the impact of a portion of House Bill 2 on women seeking abortion is "self-serving hearsay" and does not demonstrate that any individual woman would face an "undue burden" in seeking access to care, lawyers for the state of Texas argued in a brief filed Tuesday with the U.S. Supreme Court.
At issue in the appeal is whether the provision in HB 2 – the abortion regulations law enacted this summer – requiring all abortion-performing doctors to have hospital-admitting privileges within 30 miles of each clinic where they provide care is unconstitutional on its face. That's what federal District Judge Lee Yeakel ruled last month after a three-day trial. He determined that the provision does not have any rational connection to the state's ambition to "protect fetal life," nor the alleged desire to protect the health and safety of women, and it presents an undue burden on women seeking safe and legal care.
A lawsuit challenging the provision was brought by abortion providers – including Planned Parenthood and Whole Woman's Health, both of which provide abortion care in Austin – and the ACLU, arguing that the provision unconstitutionally violates women's rights to due process and equal protection. If the law was allowed to take effect Oct. 29 as proposed, they argued, more than a dozen providers across the state would cease providing abortions, some would close, and more than 22,000 women would be left with no meaningful access to care.
The state appealed Yeakel's Oct. 28 ruling, and a three-judge panel of the 5th U.S. Circuit Court of Appeals granted the state an immediate stay, allowing the law to take effect. The providers immediately appealed to the U.S. Supremes, asking the high court to vacate the 5th Circuit ruling and reimpose Yeakel's findings.
On Tuesday, the state filed its reply, arguing that there's ample evidence the provision would protect women's health, and that the providers have yet to demonstrate that the law would actually pose an undue burden on any particular woman. The arguments rest in part on the idea that the providers should have offered proof to Yeakel that individual women seeking care would be harmed, and that aggregate information from providers about whether they would be able to provide abortions – and then estimating the number of women who would be prevented from receiving care – isn't sufficient to confirm an undue burden. "[T]he closure of abortion clinics cannot be an undue burden absent findings or evidence that patients will encounter a substantial obstacle to obtaining abortions from other providers," reads the state's response, adding that it is "undisputed" that abortions will remain available in Texas, even if women would have to travel farther to access those services. The state says Supreme Court precedent "establishes that travel distances of [the sort that would happen in Texas] do not qualify as an 'undue burden.'" Moreover, they say the providers have never argued that Texas "enacted HB 2's hospital-admitting-privileges requirement with the 'purpose' of imposing a substantial obstacle on abortion patients."
What is not addressed by the state, however, is what has happened since the 5th Circuit ruled. Immediately, more than a dozen abortion clinics across the state – including the only providers in the Rio Grande Valley – ceased providing care, turning away hundreds of women with previously scheduled appointments in just the first days after the law took effect. Providers in Fort Worth, McAllen, Waco, Lubbock, Austin, and San Antonio have had to suspend – at least temporarily – their operations, scrambling to help women receive care elsewhere, in many cases hundreds of miles away. And given the reality not only of distance in Texas, but also of the impact of existing abortion regulations – including a 24-hour waiting period, state-mandated counseling, and ultrasound examination – the impact on women seeking legal care has been immediate.
In certain areas of the state, operations may begin again, as doctors obtain privileges, but the fact that the clinics have had to suspend operations speaks to another defect in the law. The law provided doctors less time to apply for and to receive privileges than state law allows hospitals to make such decisions: that is, less than 90 days for doctors to obtain privileges, while state law allows hospitals up to 170 days after an application to decide whether to grant those privileges. Meanwhile, in more remote areas of the state, doctors already know they will not be able to obtain the necessary credentials. The state says HB 2 provides an outlet for those doctors who can't obtain privileges: a severability clause that would allow individual doctors to demonstrate they are unable to comply – but in practice, that would require every negatively impacted doctor to bring a lawsuit against the state.
As we go to press Wednesday, the plaintiffs were considering whether to file a response to the state's brief.
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