Nov. 2 (Bloomberg) -- Texas women’s clinics in five cities will stop providing abortions after a U.S. appeals court temporarily allowed enforcement of a law requiring doctors who perform the procedure have local hospital admission privileges.
Whole Woman’s Health, a gynecological services provider with six locations in the state, said facilities in McAllen and Fort Worth would no longer perform abortions, and abortions at its San Antonio facility will be curtailed. Planned Parenthood Federation of America said its clinics in Austin, Lubbock, Waco and Fort Worth have also ceased offering the procedure.
Abortion rights proponents have warned that a third of the state’s more than 40 providers may cease offering the procedure if the law is upheld.
“The courts have given us no choice but to roll out our contingency plans for the discontinuation of abortion services,” Amy Hagstrom Miller, chief executive officer of Whole Woman’s Health, said yesterday. She said at a press conference in Austin that her clinics have canceled 48 appointments. “The staff and physicians in our clinics now face furlough and likely unemployment.”
The decision by the U.S. Court of Appeals in New Orleans delayed application of an Oct. 28 ruling by U.S. District Judge Lee Yeakel in Austin. Yeakel held that the Texas statute, signed in July by Republican Governor Rick Perry, wasn’t rationally related to protecting the health of women or a fetus. The New Orleans court said the law may be enforced while it considers the state’s appeal because it doesn’t present an undue burden to abortion rights, a key constitutional test.
Texas Attorney General Greg Abbott, a Republican running to replace Perry next year, said the unanimous decision by the three-judge panel, all appointed by Republican President George W. Bush, “is a vindication of the careful deliberation by the Texas Legislature to craft a law to protect the health and safety of Texas women.”
The provision challenged by abortion providers including Planned Parenthood compels doctors who perform the procedure to have admitting privileges at a hospital within 30 miles (48 kilometers) of their clinics.
It was enacted with a package of other abortion-restricting measures on July 18. Opposition to the law by Democratic State Senator Wendy R. Davis of Fort Worth, who staged an unsuccessful 10-hour filibuster in June, provided a catalyst for her own bid to succeed Perry as governor.
The plaintiffs argued the provision would force clinics to close and deny women across a wide swath of the second-biggest U.S. state access to the procedure.
Yeakel’s decision, rendered after a three-day trial, prevented the law from taking effect as scheduled on Oct. 29.
The affiliation requirement “does not bear a rational relationship to the legitimate right of the state in preserving and promoting fetal life or a woman’s health,” said the judge, also an appointee of Bush.
Similar laws have been temporarily blocked by federal courts in Wisconsin, Alabama and Mississippi and by a state court order in North Dakota. The Texas law is the first to be reinstated by an appeals court.
“This fight is far from over,” Cecile Richards, president of Planned Parenthood, said in an e-mailed statement. “This restriction clearly violates Texas women’s constitutional rights by drastically reducing access to safe and legal abortion statewide.”
Physicians who perform abortions at Whole Woman’s Health clinics in Fort Worth and McAllen do not have admitting privileges at nearby hospitals, so the clinic operator is canceling appointments at those sites, Fatimah Gifford, a spokeswoman for the organization, said in an interview. The physicians are seeking those privileges and it’s unclear how long that process will take, she said.
In San Antonio, Whole Woman’s Health’s sole physician with admitting privileges is only available during weekends, Gifford said. The San Antonio clinic has employed other physicians not affiliated with local hospitals, she said.
Planned Parenthood physicians in that group’s Texas clinics that no longer offer abortions are seeking hospital admitting privileges, the group said yesterday in a statement. Clinics in Houston, Dallas and San Antonio will continue offering the procedure, Planned Parenthood said.
The Texas Hospital Association opposed the “admitting privileges” requirement of the Texas law during this year’s legislative session, said spokesman Lance Lunsford. Some Texas hospitals affiliated with various religious denominations don’t want to admit physicians who provide abortion services, he said.
While the association didn’t take a position on abortion, its leaders told lawmakers that admitting privileges involve broader issues, including number of hours spent by the physician at the hospital, Lunsford said. If a physician who performs abortions didn’t perform any procedures in the hospital, for example, there is no process for the hospital to grant privileges, according to the association.
In other states, such as Mississippi, religiously affiliated hospitals and those seeking to avoid anti-abortion demonstrations have declined to grant admitting privileges to doctors who perform abortions.
U.S. Circuit Judge Priscilla R. Owen, whose appointment was challenged by Democrats for four years, wrote the decision allowing the new Texas law to be enforced.
“There was evidence offered by Planned Parenthood that more than 90 percent of the women seeking an abortion in Texas would be able to obtain an abortion from a physician within 100 miles of their respective residences even if” the new law took effect, Owen said.
“This does not constitute an undue burden in a large fraction of the relevant cases,” Owen said. Joining in her opinion were U.S. Circuit Judges Jennifer Walker Elrod and Catharina Haynes.
The judges also blocked part of Yeakel’s decision concerning the dispensation of pregnancy-terminating drugs, calling it “overly broad.”
The panel expedited the state’s appeal and directed the court’s clerk to schedule oral arguments in January.
“Because of this ruling, at least 13 or more clinics in Texas will close and irreparable damage will be done to women’s health in Texas,” Heather Busby, executive director of NARAL Pro-Choice Texas, said in a phone interview. “It’s a tragedy. No recourse is apparent to me.”
Joe Pojman, executive director of Texas Alliance for Life, which opposes abortion, praised the ruling because he said it will lead to safer clinics.
Texas Governor Perry said the decision affirms the state’s right to protect fetuses and the health of the women.
“We will continue doing everything we can to protect a culture of life in our state,” he said in a statement.
Republicans expect Democrats in 2014 to use the ruling as an example of a “war on women,” said Matt Mackowiak, a Republican political consultant in Austin. He said he doubts that argument will sway voters.
Davis knows abortion is unpopular in Texas, Mackowiak said.
“It’s very unusual because folks on the left want to use this issue, but their nominee doesn’t,” Mackowiak said. “She became a star because of this issue, yet now she is choosing to de-emphasize it.”
Bo Delp, a spokesman for Davis, didn’t return a call seeking comment.
The appellate case is Planned Parenthood v. Abbott, 13-51008, U.S. Court of Appeals for the Fifth Circuit (New Orleans). The lower-court case is Planned Parenthood of Greater Texas Surgical Health Services v. Abbott, 13-cv-00862, U.S. District Court, Western District of Texas (Austin).
To contact the reporters on this story: David Mildenberg in Austin at firstname.lastname@example.org; Andrew Harris in federal court in Chicago at email@example.com; Laurel Brubaker Calkins in Houston at firstname.lastname@example.org
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