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Texas Abortion Providers Challenge Omnibus Anti-Abortion Bill in Federal Court

Andrea Grimes & Jessica Mason Pieklo

A coalition of reproductive health organizations and abortion providers filed a federal lawsuit Friday morning seeking to block portions of Texas' omnibus anti-abortion law from going into effect on October 29.

A coalition of reproductive health organizations, abortion providers, the Center for Reproductive Rights, and the American Civil Liberties Union filed a federal lawsuit Friday morning seeking to block portions of Texas’ omnibus anti-abortion law, HB 2 from going into effect on October 29. The law was passed this summer during a special legislative session that brought thousands of reproductive rights supporters to the state capitol in opposition of the legislation, which requires doctors who provide abortions to have admitting privileges at local hospitals, mandates that abortion facilities meet the requirements of surgical facilities, places strict limitations on the prescription of medication abortions, and bans abortion after 20 weeks.

“The goal of this litigation is to protect access to safe and lawful abortions for women in Texas,” said attorney Jim George, who is representing the group of abortion providers and doctors, including Planned Parenthood and independent abortion providers practicing across the state, in the lawsuit against Texas Attorney General Greg Abbott and other state bureaucrats and law enforcement officials. George said HB 2’s restrictions would have a “dramatic and draconian effect” on access to abortion in Texas, and that those restrictions are politically, rather than scientifically or medically, motivated.

“Everyone needs to disabuse themselves that there is any fact or science behind the new regulations,” said George in a call with reporters Friday. The lawsuit specifically challenges HB 2’s restrictions on medication abortions, as the new law mandates that doctors prescribe abortion-inducing drugs according to a 13-year-old Food and Drug Administration label that doctors have eschewed in favor of safer and more effective evidence-based protocols. The suit also challenges HB 2’s hospital admitting privileges requirement, which the plaintiffs say does nothing to improve patient health, but does put onerous obstacles in the way of abortion providers’ ability to provide safe, legal procedures.

The Republican proponents of HB 2 claimed that the restrictions are necessary to protect the safety of Texans who seek abortions. However, the law was opposed by the American Congress of Obstetricians and Gynecologists, the Texas Hospital Association, and the Texas Medical Association.

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The lawsuit argues that of Texas’ 36 existing abortion providers—six of which are already licensed as ambulatory surgical centers—13 would be forced to close in October if doctors who perform abortions are required to obtain admitting privileges at hospitals within 30 miles of where procedures are offered.

George said his clients are asking that the federal court issue a preliminary injunction blocking these provisions, which would go into effect 90 days after Republican Gov. Rick Perry signed them into law, while the challenge to their constitutionality proceeds. George said he also intends to seek a permanent injunction, which if granted would prevent the law from ever taking effect.

Avoiding clinic closures for any length of time is a key part of maintaining long-term access to comprehensive reproductive health care, said Planned Parenthood of Greater Texas CEO Ken Lambrecht. “It’s a very hard uphill climb” to reopen shuttered clinics, he said, and when they close, “what we’ve seen is women will ration the care they receive, and put their children and families ahead of themselves,” putting their own health in danger.

According to the complaint, if the admitting privileges requirement is allowed to take effect, it will “cause the sole abortion facilities in Lubbock, Waco, Killeen, Harlingen, and McAllen to cease providing abortions and all three providers in Fort Worth to stop, thereby completely eliminating abortion services in those cities.” The result, according to the plaintiffs, would force women, especially in the western part of the state, to travel enormous distances to access care. “At least 1 in 12 women would have to travel more than 100 miles to obtain abortion care,” the complaint alleges. “Even for those facilities that can stay open, not all of their physicians have, or will have privileges as of October 29, meaning that they will be forced to serve more women with fewer providers, which is likely to force women to wait for an abortion, which, in turn, increases the risk of the procedure.”

Amy Hagstrom Miller, the founder, president, and CEO of Whole Woman’s Health, a reproductive health-care group with five locations in Texas that have also joined the lawsuit, said that while the individual mandates of the law on their own are highly restrictive, it is their combined effect that will have the most devastating impact on abortion access in the state.

“We really have to look at these provisions in the context that they’re happening at the same time,” said Hagstrom Miller on the same reporters’ call. She emphasized that doctors at her clinics are actively seeking hospital admitting privileges, but that obtaining them by the October 29 deadline is a serious challenge.

“This 90 days to get privileges is absolutely ridiculous,” said Hagstrom Miller. “The process can take up to six to eight months to even hear back in a normal kind of situation.” But the ultimate effect is, she said, that “the responsibility is on the hospital to decide which doctors in which community get to provide which care to which women.”

The plaintiffs in Planned Parenthood v. Abbott also allege that the admitting privileges requirement is medically unwarranted because whether or not a physician has privileges is dictated in part by the nature of their practice. “Physicians who, in addition to providing abortions, also maintain active obstetric or gynecological practices, may frequently utilize hospital services and therefore maintain privileges,” the complaint alleges. “Because abortion provision is so safe, however, physicians who primarily perform abortions only rarely have a patient that needs to go to the hospital, and therefore often do not have admitting privileges. In some instances, physicians may have privileges in one location, but not in another location where they travel to perform abortions on a part-time basis.”

Furthermore, the plaintiffs allege, the requirement fails to consider the day-to-day realities of practicing medicine and, as a result, is so vaguely worded as to make compliance impossible.

The lawsuit does not challenge the state’s ban on abortion after 20 weeks, nor does it challenge the state’s ambulatory center requirements. Attorneys for the plaintiffs said they were still assessing the impact of the 20-week ban and, at this time, focused on the admitting privileges and medication abortion requirements of the law, because those will have the most immediate impact for patients in Texas. As for the law’s ambulatory center requirements, Texas lawmakers must still issue final regulations before any challenge could happen. Those regulations are expected in January 2014, with the law finally going into effect in September 2014.

If the law is not blocked, said Hagstrom Miller, the consequences for Texans who seek abortions could be dire, since HB 2 “didn’t do anything to prevent the need for abortion.”

“We’re going to have unplanned pregnancies that people are going to continue,” she said, “but the thing I’m more concerned about, as far as the public health system in Texas, is how many women are going to seek abortion care anyway. They’re going to take matters into their own hands.”

A hearing date on the preliminary injunction has not yet been scheduled.

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