Lawyers for the state of Texas are set to ask a federal appeals court panel on Friday to reverse a district judge’s action two weeks ago blocking the state’s tough, new abortion clinic regulations.
The case is the latest flashpoint in an escalating national battle between conservative state lawmakers passing more restrictive abortion regulations and abortion providers and women’s rights groups seeking to protect vulnerable women.
Texas wants the three-judge panel to lift an injunction imposed by US District Judge Lee Yeakel on Aug. 29 after he struck down two key provisions of the Texas law known as HB2.
One provision required personnel performing abortions to receive admitting privileges at a local hospital. The second provision required that abortion clinics be maintained at the strict standards of an ambulatory surgery center (ASC), rather than the standards of a typical medical clinic or doctor’s office.
The judge said the provisions were unconstitutional because they imposed an undue burden on Texas women seeking an abortion by reducing to a handful the number of clinics in the state. He said for a significant number of women in Texas the new law would operate “just as drastically as a complete ban on abortion.”
Texas argues that the provisions help protect women’s health and do not amount to an unconstitutional burden.
In an appeal filed with the Fifth US Circuit Court of Appeals in New Orleans, Texas lawyers are urging the appeals court to lift the judge’s injunction and allow HB2 to be fully enforced while the substance of Judge Yeakel’s Aug. 29 ruling is being appealed.
Lawyers for abortion providers respond that the injunction should remain in place to prevent the law from imposing a severe hardship on thousands of low and moderate-income women who need their services right now. Such women rarely have the means and flexibility to take a day off work and travel long distances to a clinic.
HB2 has already taken a toll on the accessibility of abortions in Texas. Prior to the enactment of the new law, there were 41 licensed abortion providers in Texas. After the admitting privileges requirement took effect in October 2013, the number of abortion clinics dropped by nearly half. Estimates are that once the expensive ASC standards are enforced there will only be seven abortion clinics left in Texas.
Roughly 60,000 to 70,000 abortions are performed each year in Texas. Of that total, the seven clinics provide approximately 14,000 abortions a year. Some experts say it is doubtful the seven clinics would be able to make up the difference.
Critics of HB2 say it will result in 930,000 Texas women of reproductive age residing more than 150 miles from the nearest abortion clinic in Texas. Prior to the enactment of HB2, some 86,000 women lived more than 150 miles from the nearest clinic.
“The catastrophic impact on the availability of abortion services caused by the combination of these two requirements imposes a substantial obstacle in the path of every woman seeking previability abortion services in Texas,” Stephanie Toti of the Center for Reproductive Rights wrote in her brief to the appeals court.
This is not the first time an abortion regulation struck down by Judge Yeakel has gone to the Fifth Circuit for review. Last year, Yeakel struck down HB2’s admitting privileges requirement.
The Fifth Circuit reversed that ruling.
In his Aug. 29 decision, Yeakel concluded that the combination of the admitting privileges requirement with the higher cost of maintaining an ASC-rated clinic crossed the constitutional line from acceptable limitation to undue burden.
In his brief to the Fifth Circuit, Texas Solicitor General Jonathan Mitchell said that only 10 percent of Texas women would be negatively impacted by living more than 150 miles from an abortion clinic.
Mr. Mitchell said that existing legal precedent from the Fifth Circuit and US Supreme Court identifies an undue burden as one that impacts a “large fraction” of patients.
“An abortion statute cannot be [struck down] absent proof that it will unduly burden a ‘large fraction’ of patients,” he wrote.
He added: “Driving distances of 150 miles are not an undue burden, and 10 percent is not a ‘large fraction.”
Mitchell said the state was suffering an immediate injury from Yeakel’s injunction which was blocking a law that has already taken effect and had already been upheld by the Fifth Circuit.
Toti said in her brief that full enforcement of HB2 would result in “a substantial reduction in the availability of abortion services in Texas.”
She said the law would infringe women’s constitutional rights and subject them to “health risks from delayed abortions, self-abortions, or inability to obtain an abortion.”
In addition to the Texas case, the Fifth Circuit is also currently examining a Mississippi law that requires those performing abortions in that state to obtain local hospital admitting privileges.
A federal judge struck down the requirement, noting that its enforcement would cause the only abortion clinic in Mississippi to close. That would amount to an undue burden by forcing Mississippi women to travel to another state to obtain an abortion, the court said.
The state appealed. A three-judge panel of the Fifth Circuit affirmed the judge’s decision.
Lawyers for Mississippi are now asking the full Fifth Circuit to hear the case. Their petition is pending.
The Texas case is Whole Woman’s Health v. Lakey (14-50928). The Mississippi case is Jackson Women’s Health Organization v. Currier (13-60599).