Texas Seeks to Revive Abortion Law as Clinics Cut Service

Texas officials asked an appellate court to revive a state requirement that abortion doctors affiliate with local hospitals by overturning a federal judge’s finding that the measure isn’t medically necessary and places an unconstitutional burden on women seeking to end pregnancies.

“The sole question to ask is whether the obstacle imposed is substantial,” Jonathan Mitchell, Texas solicitor general, told the appellate court today. The rule doesn’t bar women from seeking abortions, he said.

The state was allowed by the U.S. Court of Appeals in New Orleans to enforce the requirement while it appeals the lower-court ruling, spurring some clinics to stop abortions and sending doctors scurrying to acquire credentials from nearby hospitals. Abortion rights advocates asked the appeals court today to uphold the lower court and immediately overturn the hospital affiliation mandate.

Related: Abortion Foes Rebuffed as Court Won’t Revive 20-Week Ban

“The law has no rational relationship to the states’ asserted interest in maternal health,” Janet Crepps, an attorney with the Center for Reproductive Rights in New York, told the appellate panel today. “Before, there were abortion providers in the Rio Grande Valley. Now there are none.”

“The district court misplaced the burden of proof on the state,” U.S. Circuit Judge Edith Hollan Jones said at today’s hearing.

The appellate panel didn’t make a decision.

State Restrictions

The Texas measure is one of more than 200 abortion restrictions passed nationwide since a Republican-led state-legislative push began in 2011. More state abortion restrictions were passed during that time than in the entire previous decade, according to a Jan. 2 report by the Guttmacher Institute, a reproductive-rights advocacy organization.

The laws have forced dozens of clinics to close or stop offering the procedure while opponents pursued legal battles to reverse them. In December, the U.S. Court of Appeals in Chicago ordered that Wisconsin’s law requiring abortion doctors to have admitting privileges at hospital within 30 miles (48 kilometers) remain blocked.

Parallel cases are proceeding in North Dakota, Alabama and Mississippi. Any conflicting rulings that emerge from those and other cases may eventually be reviewed by the U.S. Supreme Court as abortion-rights opponents seek to chip away at the 1973 Roe v. Wade decision that women have a right to abortion before a fetus is viable outside the womb.

Appellate Panel

The appellate panel comprises Jones and U.S. Circuit Judges Jennifer Walker Elrod and Catharina Haynes. Elrod and Haynes joined in the November decision allowing the Texas law to be enforced pending appeal.

Jones replaced the other judge on the earlier unanimous ruling, Priscilla R. Owen. Jones was appointed to the court by Ronald Reagan; Elrod and Haynes, by George W. Bush.

Opponents of the Texas law predicted at least a third of the state’s licensed providers would stop offering abortions once the privileges requirement took effect.

State officials countered that the law was passed “to promote the health and safety of abortion patients and to advance the state’s interest in protecting fetal life.”

The provision “ensures that all Texas women seeking abortions will be treated by a physician who can ensure the highest standards of care in case of a medical emergency,” Texas told the appellate court.

Texas Legislation

The provision, which like the Wisconsin law requires an abortion-performing doctor to hold admitting privileges at a hospital within 30 miles of where the procedure is performed, was part of a larger piece of legislation called HB2 passed in July in Texas.

Planned Parenthood and other abortion providers sued the state, including Texas Attorney General Greg Abbott, a Republican, asking that this part of HB2 and another portion, which restricted the use of drugs for ending pregnancies, be found unconstitutional.

U.S. District Judge Lee Yeakel in Austin struck down the provision on Oct. 28, finding it “does not bear a rational relationship to the legitimate right of the state in preserving and promoting fetal life or a woman’s health.”

Yeakel declined to void the state’s ability to enforce the drug limits, except where they would place an undue burden on a woman if a doctor determined the abortion was necessary to preserve her life or health.

Drug Exception

The state asked the appeals court to throw out Yeakel’s exception to the restrictions on abortion drugs. The new state law limits such drugs to uses approved by the U.S. Food and Drug Administration, Mitchell told the panel.

“Abortion doctors do not have a constitutional right to second-guess the FDA about the use of a drug,” Mitchell said today.

The requirement for admitting privileges would deny access to safe abortions to “thousands of women” in Texas each year, Crepps said in an interview before today’s hearing. This would have a greater impact in some areas of Texas, such as the middle of the state and the Rio Grande Valley, she said.

Because of the hospital admitting-privileges requirement, “24 counties in the Rio Grande Valley would be left with no abortion provider,” Yeakel said in his ruling.

The state said the closing of clinics isn’t “an undue burden absent findings or evidence that patients will encounter a substantial obstacle to obtaining abortions from other providers,” according to a Nov. 22 court filing.

‘Hardly Remarkable’

“The lack of an abortion provider in 24 counties is hardly remarkable when 241 of the state’s 254 counties lacked a provider before HB2 took effect,” the state said. Yeakel misstated the number of counties in the Rio Grande Valley, which has only four, the lawyers said. “Even if one includes all the counties along the Texas-Mexico border the number falls well short of 24.”

The law will help prevent instances of substandard care, according to a Nov. 25 filing with the appeals court by some state legislators and Texas Right to Life supporting the measure. The requirement will force doctors who don’t have hospital admitting privileges to upgrade their standards or stop performing abortions, according to the filing.

Such restrictions aren’t medically necessary and jeopardize women’s health, lawyers for the American Medical Association and the American College of Obstetricians and Gynecologists said in a separate friend-of-the-court brief to the federal appeals court.

Scientific Facts

The Texas bill “imposes government regulation on abortion care that is not based on scientific facts or the best available medical knowledge,” the doctors said. “There is simply no medical basis to impose a local admitting privileges requirement on abortion providers or to limit medical abortion to specific regimens,” referring to the limit on using drugs to end pregnancies.

“Hospitalization due to an abortion is rare,” the doctors said. According to Texas vital statistics, there were no reported maternal deaths out of 227,912 abortions in the state from 2008 to 2011, the last year for which data is available, according to the filing.

The case is Planned Parenthood of Greater Texas Surgical Health Services v. Abbott, 13-cv-00862, U.S. District Court, Western District of Texas (Austin). The appeal is Planned Parenthood of Greater Texas Surgical Health Services v. Abbott, 13-51008, U.S. Court of Appeals for the Fifth Circuit (New Orleans).

To contact the reporters on this story: Margaret Cronin Fisk in Detroit at mcfisk@bloomberg.net; Daniel Lawton at the U.S. Court of Appeals in New Orleans at daniel.lawton@gmail.com

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net

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