Texas Abortion Providers Seek Supreme Court Review as Clinics End Services

November 4, 2013 — A Planned Parenthood affiliate and several other women's health care providers have filed an emergency application with the Supreme Court to block enforcement of a Texas law (HB 2) that requires physicians who provide abortions to have admitting privileges at nearby hospitals, Politico Pro reports (Haberkorn, Politico Pro, 11/4).

Since the law took effect last week, several abortion clinics in state have had to stop offering abortion services because of the requirement, the Texas Tribune reports.

Last week, the 5th U.S. Circuit Court of Appeals ruled that the admitting privileges requirement and another provision that requires physicians to be present when administering medication abortion could take effect while the case is appealed. Carrie Williams, a spokesperson for the Texas Department of State Health Services, on Friday said that the "law is in effect and facilities are required to comply effective immediately," adding that the "new requirements will be part of our review criteria when inspecting facilities."

The appeals court scheduled an expedited hearing on the case for January 2014 (Aaronson, Texas Tribune, 11/4).

Case Background

In September, Planned Parenthood of Greater Texas Surgical Health Services and 11 other advocacy groups filed a lawsuit challenging the admitting privileges requirement and medication abortion restrictions. Specifically, the law requires that physicians who perform abortions have admitting privileges at a hospital within 30 miles.

Last Monday, U.S. District Judge Lee Yeakel issued a permanent injunction against the admitting privileges requirement. However, he largely upheld the medication abortion provision, ruling that it only imposes an undue burden on women if a physician determines that the procedure is necessary for "the preservation of [her] life or health."

The state immediately appealed to the 5th Circuit, which ruled that the state could enforce the admitting privileges requirement based on the "substantial likelihood that the state will prevail in its argument that Planned Parenthood failed to establish" that the requirement imposes an undue burden on women. The judges also lifted Yeakel's injunction against the medication abortion provision in most situations, but they allowed it to continue "to apply pending appeal with respect to a mother who is 50 to 63 days from her last menstrual period if the physician ... has exercised appropriate medical judgment and determined that, due to a physical abnormality or preexisting condition of the mother, a surgical abortion is not a safe and medically sound option."

Meanwhile, other provisions in the law remain unchallenged: a 20-week abortion ban that took effect on Oct. 29, and a requirement that clinics meet the same standards as ambulatory surgical centers, which is scheduled to take effect in 2014 (Women's Health Policy Report, 11/1).

Clinics Limit Services Under Law

According to the Tribune, at least nine abortion facilities in the state -- accounting for roughly a quarter of the state's abortion providers -- have discontinued abortion services because of the ruling.

Sarah Wheat, vice president for community affairs for Planned Parenthood of Greater Texas, said the organization has discontinued abortion services at four clinics, including facilities in Austin, Fort Worth, Lubbock and Waco. The ruling is "having an immediate impact ... and what that impact is depends on each woman and where she lives," Wheat said, adding that clinics are canceling appointments and "referring [patients] to another health center in that same community or telling [them] which cities [they will] have to travel to."

Wheat said that the affected facilities continue to offer other health services, such as cancer screenings, HIV testing and treatment for sexually transmitted infections.

Meanwhile, Whole Woman's Health founder and CEO Amy Hagstrom Miller said its facilities in Beaumont and Austin will continue to offer abortion services but that the San Antonio location will only be able to offer abortion services on a limited basis depending on when an out-of-state doctor with admitting privileges can visit. Two other clinics -- located in Fort Worth and McAllen -- will stop offering abortion care immediately. She added that Whole Woman's Health is planning to establish free transportation services for women who cannot afford to travel to available abortion providers.

"Women who need our care will ... have nowhere to turn and the staff and physicians in our clinics now face furlough and likely unemployement," Miller said, adding that the clinics have canceled at least 45 abortion appointments.

Separately, two other clinics -- Reproductive Services in Harlingen and Reproductive Services in El Paso -- are also discontinuing abortion services (Texas Tribune, 11/4). In addition, Tenesha Duncan, an administrator at Southwestern Women's Surgery Center in Dallas, said the clinic would have to restrict its weekend hours because the doctor on duty Friday and Saturday does not have admitting privileges (Brooks/Garza, Reuters, 11/1).

According to the Tribune, the loss of services means there are "vast stretches" of West Texas and the Texas Panhandle without an abortion provider. At least two of the six centers that offer abortions after 16 weeks of pregnancy -- the San Antonio Whole Woman's Health and the Planned Parenthood facility in Fort Worth -- will end abortion services (Texas Tribune, 11/4).

According to DSHS spokesperson Williams, no clinic has officially reported a closing yet (Reuters, 11/1).

Texas Case Could Have National Impact

A Supreme Court ruling could be a bellwether for other states, according to the AP/Atlanta Journal-Constitution. For example, both abortion-rights opponents and supporters in Missouri cite its 1986 admitting privileges law as a reason why the state has few abortion clinics. Either side could be emboldened by a ruling in its favor (Lieb, AP/Atlanta Journal-Constitution, 11/3).

Guttmacher Institute policy analyst Elizabeth Nash said the Texas case likely will end up before the Supreme Court because unlike other states with admitting privileges requirements -- including Alabama, Mississippi, North Dakota and Wisconsin -- the law is being enforced during the court challenge. That distinction is a "very different approach to what we've been seeing in other court cases on the same subject," she said, adding that it represents a "huge sea-change" (Jervis, USA Today, 11/1).

NYT Editorial: Texas Ruling a 'Grievous Blow'

The 5th Circuit "has dealt a grievous blow to the reproductive health and rights of Texas Women," a New York Times editorial states, noting that many clinics in the state have stopped offering abortion services because of the ruling.

The editorial states that the appeals court -- ignoring "voluminous evidence" -- "accepted the phony claim that the [admitting privileges] rule advances medical safety and mischaracterized the burden the requirement places on women seeking safe and legal abortion care in much of the state." Specifically, the court said the rule was "'not designed to strike at the right [to abortion] itself,'" when in fact "striking at abortion rights is the law's whole purpose," the editorial argues.

The Supreme Court justices "should be ready to grant" the plaintiffs' request to consider the case, the editorial concludes (New York Times, 11/1).

Texas Republicans Use Antiabortion Stance To Target Hispanic Voters

In related news, Republicans in Texas are promoting their opposition to abortion rights in an attempt to appeal to the state's Hispanic voters during the 2014 election, the New York Times reports. According to the Pew Research Center, Hispanics account for about 38% of the state's population and will represent a plurality of the state's population by 2020.

The Republican National Committee recently announced its efforts to connect with the state's Hispanic voting bloc by creating targeted outreach teams to work a grassroots campaign focusing on Republican issues, including abortion. Enrique Marquez -- a Republican political consultant -- said that if the party focuses on abortion in addition to its economic views, they could succeed among Hispanic voters because that electorate considers "[f]amily values … a very powerful issue."

However, state Rep. Mary González (D) said such "stereotypes are problematic," adding that many Hispanics support the Democratic Party's stance on immigration, education and health care. Amber Salinas, a community organizer for the Texas Organizing Project, added that Hispanics prioritize "so many other things that impact them more on a daily basis" than abortion (Ura, New York Times, 11/2).