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Providers File Brief in HB 2 Lawsuit; Texas Health Department Ends HIV Prevention Funding for Planned Parenthood

January 4, 2016 — Women's health care providers on Monday filed a brief with the U.S. Supreme Court arguing that provisions in Texas' omnibus antiabortion-rights law (HB 2) do not make the procedure safer and serve only to reduce access to abortion care, Washington Newsroom/Reuters reports (Washington Newsroom/Reuters, 12/29/15).

Background

The Supreme Court in November 2015 announced it will hear a challenge to HB 2, which has already closed about half of the abortion clinics in Texas (Women's Health Policy Report, 11/13/15). Last month, the high court announced it will hear arguments in the case on March 2, which puts the Supreme Court on track to issue a final ruling in June (Rosenthenthal, Houston Chronicle, 12/24/15).

The case, Whole Woman's Health v. Cole, centers on two provisions. One requires abortion clinics in the state to meet the same building standards as ambulatory surgical centers, and the second requires abortion providers to have admitting privileges at local hospitals.

The Center for Reproductive Rights, which represents the group of abortion providers challenging the law, argues that HB 2 is unconstitutional, creates an undue burden for Texas women who live far from the nearest clinic, and does not promote the state's interest in improving health. If the court rules for the state, the number of clinics will fall to about 10, compared with about 40 before the law took effect.

In June, the 5th U.S. Circuit Court of Appeals upheld the law's ambulatory surgical centers provision and admitting privileges requirements except in the case of one clinic, Whole Woman's Health in McAllen, Texas. Later that month, CRR asked the 5th Circuit to stay the decision while the clinics appeal to the Supreme Court. The 5th Circuit rejected the request. CRR then filed an emergency request with the Supreme Court to stay the lower court's ruling and allow the clinics to remain open pending appeal. The Supreme Court in late June temporarily blocked HB 2's ambulatory surgical center requirement. There was debate about whether the high court's order also blocked the law's admitting privileges requirement (Women's Health Policy Report, 11/13/15).

Brief Details

According to the brief filed Monday, the provisions would close down more than 75% of the abortion clinics in Texas and prevent new clinics from opening. The brief argues that the Texas law is unconstitutional and would place an undue burden on women seeking abortion care. Moreover, the brief notes that the law provides no health benefits and singles out abortion care "even though it is safer than many other common medical procedures."

Texas officials have until the end of January to respond to CRR's brief (Washington Newsroom/Reuters, 12/29/15).

State Health Department Ends PPGC's HIV Prevention Funding

In related news, the Texas Department of State Health Services in December notified Planned Parenthood Gulf Coast that it would not renew its long-standing contract for HIV prevention services after it expired Dec. 31, 2015, the Texas Tribune reports.

The decision follows the state's recent actions to terminate Planned Parenthood's Medicaid provider agreement and remove any clinics affiliated with abortion providers from the state-federal Breast and Cervical Cancer Services program.

Grant Details

The grant for HIV prevention services is funded by CDC and managed by the state. PPGC has received the grant since 1988. The most recent grant expired on Dec. 31, 2015.

Without renewal of the grant, PPGC will lose about $600,000 in annual funding, which was used to distribute condoms, consult on referrals, and provide HIV testing and counseling. According to theTribune, no other Planned Parenthood affiliates currently receive the funding.

PPGC used the funding to provide HIV health care services to individuals in five counties around the Houston area. According PPGC, the grant since 2014 has helped the organization identify 1,182 people who have HIV and helped fund more than 138,000 HIV tests.

Latest Developments

On Dec. 21, 2015, DSHS in a notice to PPGC wrote, "There will be no further renewals of this contract." According to a spokesperson with the department, state health officials are "working with local health departments in the area to continue to provide these services."

PPGC spokesperson Rochelle Tafolla said, "I don't know who else is going to fill that gap, and I don't know if anyone can, frankly." She added, "Every time the state cuts these programs in an attempt to score political points ... the true victims here are tens of thousands of women and men who no longer have access to health care that they need" (Ura, Texas Tribune, 12/22/15).

Texas Supreme Court Amends Judicial Bypass Requirements

In other related news, the state Supreme Court on Tuesday amended rules in a state law that targets minors who are seeking abortion care (Oliver, Texas Supreme Court/WTAW, 12/29/15). The law took effect Jan. 1 (Ura, Texas Tribune, 12/31/15).

Background

The law, which Gov. Greg Abbott (R) signed in June, imposes additional restrictions on minors seeking a court's permission to receive abortion care instead of obtaining parental consent for the procedure.

Minors seeking judicial bypass must prove at least one of three grounds: that they are well-informed and mature enough to obtain an abortion without parental notification; that it is not in their best interest to notify their parents of the procedure; or that notifying their parents would cause emotional, physical or sexual abuse.

The new law requires minors to apply for bypass in their county of residence, an adjacent county if their home county has fewer than 10,000 residents or in the county in which they plan to have the procedure. In addition, the law increases the burden of proof that minors face when claiming that obtaining parental consent for abortion would lead to emotional, physical or sexual abuse.

Previously, judges were required to rule on such petitions within two days, at which time the request was considered approved absent a judge's ruling. Under the new law, a judge is required to rule on a minor's request within five days. The law did not provide any guidance on whether a request is granted or denied if a judge does not issue a ruling in that timeframe.

The law also requires physicians to assume pregnant women are minors and request they show proof of identification. However, physicians are allowed to provide abortion care without a woman providing an ID. In such cases, physicians are required to provide a report to the state on the abortion.

The law allows for civil penalties of up to $10,000 for any individual found to have "intentionally, knowingly, recklessly or with gross negligence" violated the measure.

In October 2015, the Texas Supreme Court Advisory Committee unanimously agreed that if a judge does not rule within the law's five-day deadline for a minor's bypass application, the state Supreme Court or a regional presiding judge would appoint a new judge. However, the advisory committee did not decide on how best to preserve a minor's anonymity while meeting the law's requirements (Women's Health Policy Report, 10/20/15).

Latest Developments

The state Supreme Court amended the rules so that if a judge does not rule on a minor's request within five days, the request is automatically denied. According to the Texas Tribune, the Texas Supreme Court added in the automatic denial language even though the state Legislature removed that language from the bill during debate (Texas Tribune, 12/31/15). Further, minors now are required to affirm by oath or under threat of perjury that they have not previously been denied a judicial bypass request for the same pregnancy unless they demonstrate a "material change in their circumstances" (Texas Supreme Court/WTAW, 12/29/15).