By Dave Andrusko
A trial that challenges two components of Texas’ HB 2 passed in 2013 that began yesterday in the court of United States District Judge Lee Yeakel is expected to continue through Thursday.
One—the requirement that abortionists have admitting privileges at a local hospital—has already been litigated. An appeals court panel unanimously rejected the abortion clinics’ challenge earlier this year.
Two clinics (in McAllen and El Paso) were back in Austin Monday, maintaining that the court should take a second look, given that they are located in areas that are or will be without an abortion clinic.
The New York Times reported that Jan Soifer, a lawyer for the Center for Reproductive Rights told Judge Yeakel that
“if the law was fully carried out, about one million Texas women of reproductive age would live more than 150 miles from the nearest abortion facility, ‘exposing women to greater health risks’ that she said included women choosing to self-induce abortions.”
James D. Blacklock, a state deputy attorney general, responded in his opening statement that
“The record will not show that they can’t comply with the law but that they won’t” because they disagree with the law.
According to the Times
“With a majority of Texas women living within a three-hour drive of an abortion facility come September, Blacklock also indicated that abortion providers’ legal actions were motivated by their concerns of how the law would affect their businesses.’
Referring to the March 28 decision by the appeals court panel, Blacklock said that the panel had already held that driving 150 miles an abortionist is not an “undue burden.”
In that decision, writing for the unanimous three judge panel of the U.S. Court of Appeals for the 5th Circuit, Judge Edith Jones concluded that “Although some clinics may be required to shut their doors there is no showing whatsoever that a woman will lack reasonable access to a clinic in Texas.”
For example, “In a number of areas in Texas, physicians who are performing abortion already have admitting privileges.” With respect to the difficulty one abortion clinic owner said she had in recruiting new abortionists, Jones noted that “all told” only one of the physicians she had contacted “declined to provide abortions in Texas as a consequence of H.B. 2.”
“The evidence presented to the district court [to Judge Yeakel] demonstrates that if the admitting-privileges regulation burdens abortion access by diminishing the number of doctors who will perform abortions and requiring women to travel farther, the burden does not fall on the vast majority of Texas women seeking abortions. Put otherwise, the regulation will not affect a significant (much less ‘large’) fraction of such women [women seeking abortions in a given area of Texas], and it imposes on other women in Texas less of a burden than the waiting-period provisions upheld” in the Supreme Court’s [1992 Planned Parenthood v.] “Casey” decision.
The second part of HB 2 under challenge in this case does not take effect until September 1– requiring abortion clinics to meet the standards of ambulatory surgical centers.
The abortion clinics insisted the requirements were expensive, not needed, and intended only to shut the clinics down. They also insisted abortions are safe.
Judge Jones referenced that argument in her 37-page opinion. She noted that “Planned Parenthood conceded that at least 210 women in Texas annually must be hospitalized after seeking an abortion.”
In its filing, the state of Texas said, “Receiving optimal care is not an undue burden.” The state added 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.”
Not be overlooked is that Planned Parenthood is constructing another mega-abortion clinic in Dallas. And last March Planned Parenthood of South Texas (PPST) announced that it would be building a $5 million new center in San Antonio that would meet the new standards.
The trial began the same day that U.S. District Judge Myron Thompson overturned an Alabama law that required abortionists to have admitting privileges, a decision that came as no surprise to anyone who followed the three-week trial in May and June that Thompson held without a jury.
Judge Thompson’s decision came less than a week after a split three-judge panel of the 5th U.S. Circuit Court of Appeals struck down a similar Mississippi law.