October 22, 2013 — On Monday, U.S. District Judge Lee Yeakel heard opening arguments in a trial over the constitutionality of Texas' new antiabortion-rights law (HB 2), Kaiser Health News/Texas Tribune reports (Kaiser Health News/Texas Tribune, 10/21).
In September, Planned Parenthood of Greater Texas Surgical Health Services and 11 other advocacy groups filed a lawsuit challenging provisions in the law that require physicians to administer medication abortion drugs in person and for all physicians who perform abortions to have admitting privileges at a hospital within 30 miles. Jim George, a lawyer representing the plaintiffs, said they are not challenging another provision in the law that bans abortion after 20 weeks of pregnancy in order to focus on the provisions that will have a more immediate effect (Women's Health Policy Report, 10/7).
Arguments in the case are scheduled to conclude on Tuesday, and Yeakel said he would issue a prompt ruling, given the significance of the law. The provisions under debate are scheduled to take effect Oct. 29.
Yeakel also said he expects the case will ultimately reach the Supreme Court. "I would be shocked if whoever was displeased by my ruling did not appeal," he said.
In their opening arguments, the plaintiffs asked for a preliminary injunction against the contested provisions, arguing that the requirements are unconstitutional because they place an undue burden on women attempting to access abortion. They called five expert witnesses to substantiate their claims; three spoke on Monday and two are scheduled to speak on Tuesday.
The state attorney general's office argued that the provisions were not only approved to protect women's health but also to advance the state's interest in protecting and promoting fetal life. The state said the burden of proof lies on the plaintiffs because the Supreme Court's ruling in Planned Parenthood v. Casey allows the state to enact laws advancing its interest in fetal life as long as it does not create an undue burden on women.
In addition, the state argued that the provisions cannot be overturned in whole because the law includes a severability clause that requires medical professionals who believe their rights have been violated by the law to individually seek exemption from it.
The state also said that it is impossible to prove -- as the plaintiffs contended -- that one in three abortion clinics would not be able to perform abortions or that 22,000 women would be prevented from accessing the procedure under the law.
Paul Fine, medical director for Planned Parenthood Gulf Coast and Planned Parenthood Center for Choice, was the plaintiffs' first expert witness. Fine said that because hospitals are not required to extend admitting privileges to doctors, the law's provision requiring such privileges would prevent about one-third of existing facilities from providing abortion services. He also noted that in an emergency, women likely would be taken to the nearest facility, which would not necessarily be the one where her doctor has admitting privileges.
State attorney John Scott contested the suggestion that doctors would be afraid to apply for privileges, arguing that state law prohibits hospitals from denying admitting privileges based on a medical professional's willingness to provide abortions. Fine said the new law has no bearing on physicians applying for privileges because hospitals do not have to explain the reasons behind their decisions on whether to grant them.
Fine also contended that the law's provision requiring doctors to follow the FDA regimen for medication abortion is less effective and risks more side effects than following the industry standard of evidence-based protocol. He added that only eight out of the 1.75 million women who have had medication abortions since FDA approved it have died from complications, a rate that makes the drug safer than penicillin.
Jennifer Carnell, an emergency physician at Ben Taub hospital in Houston, and the plaintiffs' second witness, also testified that admitting privileges were unnecessary, both because of the low rate of abortion complications and because emergency room doctors are trained to treat the two most serious abortion complications: hemorrhage or sepsis.
Separately, Joseph Potter, a sociology professor and demographer at the University of Texas and principal investigator of the Texas Policy Evaluation Project, testified that his research demonstrated 22,200 women seeking abortions would be unable to attain abortion services if HB 2 is fully implemented. He said 18 counties in the state had abortion facilities in 2011, but that number would be cut to seven if the law takes full effect.
In addition, Potter said it would be unlikely that new providers would open facilities or existing providers would expand capacity, given the difficulty abortion providers face in providing their services and in recruiting other employees (Kaiser Health News/Texas Tribune, 10/21). He noted that 76 of the state's family planning clinics closed after the 2011 state budget cuts and none has reopened (Harris/Montgomery, Bloomberg, 10/22).