Texas abortion law: US judge strikes down one limit, leaves another in place

The Texas abortion law requiring providers to have admitting privileges at a local hospital was struck down. But a provision forcing reliance on an outdated drug protocol stands. 

Tamir Kalifa/AP/File
Abortion rights supporters rallied on the floor of the State Capitol rotunda in Austin, Texas, July 12, 2013. New abortion restrictions passed by the Texas Legislature are unconstitutional and will not take effect as scheduled on Tuesday, Oct. 29, 2013, a federal judge has ruled.

A federal judge on Monday struck down a portion of a Texas law that threatened to close a significant number of abortion clinics in the state, but upheld another provision of the law, making it likely that both sides of the abortion issue would appeal to higher courts.

US District Judge Lee Yeakel in Austin upheld a major provision of the Texas law that forces clinic workers to rely on outdated procedures for chemical abortions, rather than using newer, more efficient medical protocols.

The judge said that the restrictive chemical abortion provision of the Texas law did not amount to an undue burden on the right to an abortion for “most women.”

The judge concluded, however, that the law could not be used to prosecute a physician who relied on the newer chemical abortion protocol after determining that the newer protocol was necessary to preserve the life or health of the patient.

This means that the restrictive chemical abortion provision will apply to most women in Texas.

The Texas law is set to take effect on Tuesday.

The split decision sets the stage for expected appeals to the Fifth US Circuit Court of Appeals in New Orleans, and, potentially, a showdown at the US Supreme Court.

The restrictive Texas abortion law marks the latest skirmish in an intensifying battle between anti-abortion conservatives and pro-abortion-rights liberals over new regulations being introduced in states around the country.

Texas State Sen. Wendy Davis made national headlines last summer when she conducted an 11-hour filibuster in an attempt to raise awareness – and opposition – to the new law. On Oct. 3, Senator Davis announced she is a candidate for governor.

The district court ruling marks a partial victory for Davis, who argued that the new restrictions created an undue burden on a woman’s right to an abortion.

House Bill 2 was passed in July and signed into law by Gov. Rick Perry.

A group of abortion providers and their supporters – including Planned Parenthood, the Center for Reproductive Rights, and the American Civil Liberties Union – filed suit to block certain provisions that they said were unconstitutional. 

At issue in the Texas lawsuit was whether abortion clinic personnel could be required to obtain admitting privileges from a local hospital.

The new law created a requirement that many abortion clinics could not fulfill. Abortion providers complained that admitting privileges were not necessary for the medical procedures they performed and that such a requirement would require many clinics to close their doors.

Supporters of the new restriction said it would help protect women’s health by ensuring better communication between a clinic and a receiving hospital during a medical emergency.

Judge Yeakel said he had “grave reservations” about the effect of the measure. He concluded that the provision would likely lead to the closing of a significant number of abortion clinics, thus creating an undue burden on Texas women in those areas who were seeking an abortion.

“The court concludes that whether an abortion provider has admitting privileges does nothing to further the interest of patient care by improving communication,” he wrote in his 26-page opinion.

Also at issue in the lawsuit was whether the state Legislature could restrict the procedure used to perform chemical abortions, by requiring that clinics only use the protocol and dosages that had been approved by the Food and Drug Administration in 2000.

Abortion providers complained that in the 13 years since FDA approval of the chemical RU-486, medical personnel nationwide have improved the protocol and dosages for chemical abortions.

They argued that the new, refined procedures permitted significantly lower dosages than the FDA-approved protocol, were more convenient for patients, and allowed the clinics to extend the use of chemical abortions from 49 days to 63 days after a woman detected physical evidence of her pregnancy.

The Texas law requires clinic operators to jettison these newer, more refined protocols for most of their patients and return to the 2000 procedure approved by the FDA.

The judge said the newer protocol was safe and effective and that physicians “overwhelmingly moved away from the FDA protocol soon after it was approved.”

“Taken as a whole the FDA protocol is clearly more burdensome to a woman than the off-label protocol,” he said. But the judge added that individuals do not have a constitutional right to a preferred medical option provided a safe alternative exists.

Judge Yeakel said the safe available alternative was a surgical abortion. Because of that alternative he said, the Texas law did not pose an unconstitutional restriction.

“As to most women, House Bill 2’s restrictions on medication abortion do not rise to the level of an undue burden,” he said.

It is unclear why, given the widespread use of the newer protocol, the FDA, under the Obama administration, has not acted to approve its use.

Restrictive statutes like those in Texas have been passed largely by Republican lawmakers.

Laws seeking to impose the FDA protocol for chemical abortions had earlier been passed in North Dakota and Oklahoma. Both laws have since been struck down by state courts.

Laws requiring abortion clinic personnel to have admitting privileges at a local hospital were passed and then struck down in Alabama, Mississippi, North Dakota, and Wisconsin.

Pro-choice groups and their leaders said they were pleased that the judge had struck down the admitting privileges provision. But they said they were troubled by his upholding the FDA protocol requirement.

“The court was right to strike down the admitting privileges provision. It is unconstitutional and it would have shut down women’s health centers throughout the state,” said Louise Melling of the ACLU.

“We are disappointed by the ruling on the medication abortion restriction, which ignores accepted medical practice and will force providers to use less safe methods,” Ms. Melling said.

“Today’s ruling marks an important victory for Texas women,” said Cecile Richards, president of Planned Parenthood Federation of America.

“While this ruling protects access to safe and legal abortion for women in many parts of the state, it puts ideology over science by banning a safe method of abortion for many women,” Ms. Richards said in a statement.

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