Testimony Concludes in Trial Over Texas Abortion Restrictions

October 23, 2013 — Attorneys for Texas abortion providers and the state are presenting closing arguments on Wednesday on whether certain provisions in an antiabortion-rights law (HB 2) are constitutional, the Texas Tribune reports. Expert testimony concluded on Tuesday afternoon (Aaronson, Texas Tribune, 10/22).

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. Another provision in the law bans abortion after 20 weeks of pregnancy, but Jim George, a lawyer representing the plaintiffs, said they are not challenging that provision in order to focus on the provisions that will have a more immediate effect (Women's Health Policy Report, 10/22).

U.S. District Judge Lee Yeakel granted each side one hour on Wednesday morning to make its final arguments (Saleh Rauf, Houston Chronicle, 10/22). Yeakel said he would issue a final ruling before the two provisions take effect on Oct. 29 (Tomlinson, AP/Sacramento Bee, 10/22).

According to the Houston Chronicle, it is likely that a higher court will ultimately decide the issue, as both sides are "actively girding" for an appeal to the 5th U.S. Circuit Court of Appeals and possibly the U.S. Supreme Court (Houston Chronicle, 10/22).

Tuesday's Testimony

On Tuesday, state attorney John Scott finished cross-examining Joseph Potter, a witness for the plaintiffs and the principal investigator of the Texas Policy Evaluation Project at the University of Texas-Austin. Scott said Potter's research did not include an economic analysis of the clinics that the law would affect, relying instead on information provided by the plaintiffs and other clinics.

Scott also pressed Potter to name the clinics that he had testified would close under the law (Texas Tribune, 10/22). Yeakel indicated that the "court would find it helpful" if Potter identified the affected clinics rather than making a general statement, so attorneys representing the plaintiffs agreed to submit the data that abortion clinics provided for the study and Potter's notes (Houston Chronicle, 10/22). Scott also questioned Potter about donors that supported his research, but Yeakel did not press Potter to identify them.

In addition, Whole Woman's Health Corporate Vice President Andrea Ferrigno testified that her organization had contacted 32 hospitals for information on applying for admitting privileges applications with varying levels of response. The group has not received a response on any of the 15 applications that have been submitted so far, she said.

Ferrigno said that only three of her facility's physicians currently have admitting privileges and that obtaining additional agreements is difficult because of various hospital stipulations, such as a requirement that doctors live close by. She added that the group's clinic in the Rio Grande Valley would likely close, leaving women there without any nearby options.

State attorney Philip Lionberger questioned Ferrigno about the Whole Women's Health's practice of providing medication abortion based on evidence-based protocol rather than FDA guidelines. Ferrigno said women at the clinic watch an instructional video and receive written instructions on how to take the second drug in the medication abortion regimen at home, the emotions they might experience and how to respond to adverse reactions.

Lionberger also argued that minors who cannot meet the state requirement of obtaining parental consent for an abortion and instead receive permission from a judge might not have parental supervision at home to ensure they take the second drug properly. In response, Ferrigno said that the judicial bypass was granted because the minor was considered sufficiently mature to make the decision herself.

Whole Woman's Health founder and CEO Amy Hagstrom Miller was the plaintiff's final witness, and she testified about the difficulty of recruiting new physicians with active admitting privileges. She said doctors "are either fearful, unwilling or unable to make the commitment," partly because of the harassment they would face at the clinic.

In response to questions by state Assistant Solicitor General Arthur D'Andrea, Hagstrom Miller said that she had thought of increasing the price of abortion services to cover the additional costs associated with HB 2, but ultimately determined it would be unethical because the increase could make the procedure "cost-prohibitive." She added that her clinics already perform the background checks on doctors that D'Andrea indicated hospitals would do when screening applicants for admitting privileges (Texas Tribune, 10/22).