August 4, 2014 — A trial beginning in federal court on Monday will test the constitutionality of a provision in a Texas law (HB 2) that requires abortion clinics to meet the same standards as ambulatory surgical centers, Kaiser Health News/Texas Tribune reports (Ura/Edelman, Kaiser Health News/Texas Tribune, 8/4).
Earlier this year, a panel of three judges on the 5th U.S. Circuit of Appeals upheld two other provisions in the law, ruling that they do not unduly burden abortion rights. One provision requires that abortion providers have admitting privileges at nearby hospitals. The other provision mandates that providers follow FDA protocols when administering medication abortion, rather than the evidence-based regimen that is commonly used (Women's Health Policy Report, 4/11).
U.S. District Court Judge Lee Yeakel -- who temporarily blocked the admitting privileges provision last year, before it was appealed to the 5th Circuit -- is presiding over the ambulatory surgical centers trial, which is expected to continue at least through Thursday. Yeakel has speculated that at least one of the cases filed against HB2 will be appealed to the Supreme Court.
The ambulatory surgical centers provision is scheduled to take effect on Sept. 1. The Center for Reproductive Rights, which filed the suit on behalf of several abortion providers in the state, is asking the U.S. District Court for the Western District of Texas to block the provision.
CRR argues that the provision unconstitutionally limits women's access to abortion because it would leave Texas with fewer than 10 abortion facilities, none of which are south or west of San Antonio. According to the KHN/Tribune, only six clinics currently meet the provision's requirements, and all of them are located in major cities.
Esha Bhandari, an attorney for the abortion providers, said that the current case "is a little different" than the one filed against the law's admitting privileges and medication abortion requirements because the burden posed by the ambulatory surgical centers mandate will be immediately felt. "[W]e're talking about building facilities that cost millions of dollars," Bhandari said of the changes that would be required to meet the mandate, adding, "Either they already exist, or they're not going to magically appear on Sept. 1."
Meanwhile, CRR also is asking the court to suspend the law's admitting privileges provision for two clinics in the state -- Whole Woman's Health in McAllen and Reproductive Services in El Paso -- that had to close after they were unable to meet the requirement (Kaiser Health News/Texas Tribune, 8/4).
CRR President and CEO Nancy Northup said that requiring "every abortion clinic to become a mini-hospital is medically unjustified and will push already scant reproductive health care services that much further -- if not entirely -- out of reach for Texas women" (Koppel, Wall Street Journal, 8/3).
The state's court filings claim that abortions are more dangerous than providers acknowledge and that the ambulatory surgical centers requirement will improve safety and patient care.
According to KHN/Tribune, the filings dispute CRR's arguments about the "alleged burdens of travel and cost" that would result from the clinic closures, adding, "Receiving optimal care is not an undue burden." The state adds that it "would be safer for patients to drive further to receive an abortion at a surgical facility with a credentialed and privileged physician than to seek an abortion at a nearby, substandard clinic."
Texas Right to Life spokesperson Melissa Conway said that she thinks the court will uphold the law, which she said represents the "best practice standards of care" (Kaiser Health News/Texas Tribune, 8/4).