Texas can’t enforce a law that would have left the second-largest U.S. state with fewer than 10 abortion clinics, a federal judge ruled, extending to three a run of pro-clinic rulings by federal judges in the region.
U.S. District Judge Lee Yeakel yesterday ruled that a state law requiring abortion facilities to meet the same physical standards as outpatient surgical centers by Sept. 1 imposes an undue burden on women’s access to safe legal abortion.
Federal judges this year have blocked two states from enforcing laws that would have cut the number of abortion clinics in Alabama to two and left Mississippi without any.
Women’s organizations said the Texas law would have closed all abortion clinics west and south of San Antonio, forcing some women to travel more than 500 miles (805 kilometers) to obtain the procedure in major cities in the eastern and central parts of the state.
Yeakel blocked the state from enforcing the strict new building requirements on any currently licensed abortion facility and prohibited the state from closing two remaining clinics in west Texas and the Rio Grande Valley where doctors couldn’t comply with an earlier rule that they have admitting privileges at a local hospital.
“When the two provisions are considered together, they create a scheme that effects the closing of almost all abortion clinics in Texas that were operating legally in the fall of 2013,” Yeakel said in the ruling.
Yeakel rejected the state’s argument that the seven or eight clinics that could continue operating under the new rules would meet the demands of the second-largest population of reproductive-age women in the U.S. Each of these clinics would have to serve 7,500 to 10,000 patients a year, he said.
“Even if the remaining clinics could meet the demand, the court concludes that the practical impact on Texas women due to the clinics’ closure statewide would operate for a significant number of women in Texas just as drastically as a complete ban on abortion,” he said.
Lauren Bean, a spokeswoman for the Texas Attorney General’s office, said in a statement that the state disagrees with the ruling and will seek immediate relief from the U.S. Court of Appeals in New Orleans. The state filed a notice of appeal yesterday.
In a four-day nonjury trial, Yeakel heard testimony that the new structural standards would add more than $1 million in construction costs to widen a clinic’s hallways and doors, install special ventilation systems and retrofit locker rooms, among hundreds of requirements.
The judge also reviewed the effect on two of the last clinics that served west and south Texas of the requirement for doctors to obtain admitting privileges at nearby hospitals. Both clinics closed after their doctors were unable to gain privileges at local hospitals.
Yeakel, who was appointed by President George W. Bush, a Republican, sided with the clinics last year in a separate court challenge against the admitting-privileges rule.
That decision was overturned in March by the appeals court in New Orleans. The appeals court ruled that Texas women aren’t unduly burdened by having to travel as far as 150 miles or to another state to obtain legal abortions.
Texas defended its restrictions as necessary to safeguard women’s health. The state maintained it has no legal obligation to make in-state abortion services available to its citizens, who are free to visit clinics in neighboring states.
“There are no obstacles involved with traveling across state lines, particularly when the clinic in question is less than a mile from the state line,” lawyers for the state said in court papers. They referred to a New Mexico facility that will remain open after the last one in El Paso closes.
Yeakel called the state’s argument that women in west Texas can get abortions in New Mexico, where clinics don’t have to comply with outpatient surgical center codes, “disingenuous and incompatible” with the state’s goal of protecting women’s health.
“If, however, the state’s underlying purpose in enacting the requirement was to reduce or eliminate abortion in parts of all of Texas, the state’s position is perfectly congruent with such a goal,” he said. “These substantial obstacles have reached a tipping point that threatens to chip away at the private choice” women have to end early pregnancies under federal law.
A study by the Texas Policy Evaluation Project at the University of Texas, estimated the number of abortions in Texas fell 13 percent since the hospital-privileges rule went into effect last November.
Before the Republican-controlled Legislature passed abortion regulations in mid-2013, Texas had 41 licensed abortion clinics. That number dropped to 22 after the admitting-privileges rule kicked in, according to the study.
Six clinics can comply with the outpatient surgical center standards, according to court papers. The abortion-rights activists told Yeakel in an Aug. 4 filing they are trying to get two additional clinics operational by September, with no guarantees on the timetable.
Women’s health advocates said they sued to block the abortion restrictions to keep Texas “from plunging millions of women back into the darkness and grave danger of illegal abortion that Roe v. Wade was supposed to end,” Nancy Northup, president of the Center for Reproductive Rights, said in an e-mail referring to the 1973 U.S. Supreme Court decision saying women have a right to abortion under the Constitution.
The Austin ruling comes against a shifting backdrop of conflicting abortion-related rulings across the southern U.S.
A three-judge appellate panel, different from the one that overturned Yeakel’s admitting-privileges decision, on July 29 blocked enforcement of a Mississippi admitting-privileges rule in a New Orleans appeals court decision. That panel said Mississippi’s rule would close the state’s last remaining clinic and force residents to travel out of state to access legal abortion.
“Mississippi may not shift its obligation to respect the established constitutional rights of its citizens to another state,” the panel said in a divided ruling.
On Aug. 4, an Alabama trial judge temporarily blocked enforcement of that state’s admitting-privileges rule, which would close three of five remaining abortion clinics in that state. The judge called the state’s justification for its rule “exceedingly weak.”
The Texas case is Whole Woman’s Health v. Lakey, 1:14-00284, U.S. District Court, Western District of Texas (Austin).