A federal judge has declared part of Texas' abortion law to be unconstitutional, blocking a provision that requires abortion providers to secure admitting privileges at hospitals within 30 miles of where they perform abortion procedures.
UPDATE, October 29, 8:53 a.m.: Immediately following federal Judge Lee Yeakel’s ruling Monday afternoon that part of Texas’ omnibus anti-abortion law is unconstitutional, the State of Texas filed an appeal to the ruling, the San Antonio Express-Newsreported. Spokeswoman of Texas Attorney General Greg Abbott, Lauren Bean, said in a statement, “As everyone—including the trial court judge—has acknowledged, this is a matter that will ultimately be resolved by the appellate courts or the U.S. Supreme Court.”
Less than a day before parts of Texas’ new omnibus anti-choice law were set to go into effect, a federal judge has declared one part of the law to be unconstitutional, blocking a provision that requires abortion providers to secure admitting privileges at hospitals within 30 miles of where they perform abortion procedures. The court did not block a second challenged provision of the law, which mandates that medication abortions be prescribed according to a 13-year-old Food and Drug Administration (FDA) protocol, except in cases where an alternate, non-FDA protocol is “necessary for the preservation of the life or health of the mother.”
Texas’ new abortion law, HB 2, passed this summer in a third special legislative session called by Gov. Rick Perry, following state Sen. Wendy Davis’ newsmaking 13-hour filibuster. A group of abortion providers, including some Texas Planned Parenthood clinics and doctors as well as reproductive rights groups filed suit against the state in September, asking a federal judge to block the hospital privileges and medication abortion provisions of the law, both of which were set to go into effect on Tuesday, along with a ban on abortion after 20 weeks, which was not challenged in this suit. The law’s fourth provision, which requires that abortion clinics adhere to the same standards as ambulatory surgical centers, is set to go into effect in September 2014 and has not yet been challenged in court.
In a ruling released Monday afternoon, Judge Lee Yeakel concluded that the hospital admitting privileges requirement “lacks a rational basis and places an undue burden on a woman seeking an abortion.”
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“The court expresses grave reservations about allowing a hodge podge of diverse medical committees and boards to determine, based solely on admitting privileges, which physicians may perform abortions,” wrote Yeakel. The judge was not convinced by the State of Texas’ contention that the admitting privileges requirement would improve patient care or outcomes, and concluded that the requirements “do not rationally relate to the State’s legitimate interest in protecting the unborn.”
Yeakel was also convinced by abortion providers’ evidence concerning the safety of abortion procedures generally, writing that “the vast majority of abortion providers are unable to ever meet the threshold annual hospital admissions, because the nature of the physicians’ low-risk abortion practice does not generally yield any hospital admissions.”
But Yeakel did not fully enjoin the medication abortion provision of HB 2, despite his finding that the FDA protocol is “assuredly more imposing and unpleasant for the woman, requiring at least one additional visit to a clinic and allowing less control over the timing and convenience of the medically induced miscarriage.”
Yeakel ruled that because of the availability of surgical abortion as an alternative, the FDA protocol provision was only an “undue burden” for pregnant people “for whom surgical abortion is, in the sound medical opinion of their treating physician, a significant health risk,” during the time between 50 to 63 days from their last menstrual period.
“The Supreme Court has repeatedly held that a state may not restrict access to abortions that are ‘necessary, in appropriate medical judgment, for the preservation of the life or health of the mother,'” wrote Yeakel, and because the Texas legislature “appears, however, to have attempted to include a general health-of-the-mother exception applicable to the act as a whole,” doctors could prescribe alternative evidence-based protocols when necessary, without fear of prosecution.
Amy Hagstrom Miller, CEO at Whole Woman’s Health, a group of abortion clinics in five different Texas cities, released a statement saying that she and her organization are “relieved” that Yeakel blocked the hospital privileges provision of HB 2, but “are disappointed that Judge Yeakel did not also block the severe restrictions on medication abortion.”
“Nearly 40 percent of the women we serve at Whole Woman’s Health choose medication abortion and now Texas is preventing these women from the advances in medical practice that other women across the United States will be able to access,” said Hagstrom Miller.
Center for Reproductive Rights President and CEO Nancy Northup said in a statement, “Today’s decision has averted a catastrophic health crisis for women across the state of Texas. Politicians, not doctors, pushed for both of these unconstitutional restrictions—despite the best medical standards for women’s health care.”
A Texas GOP lawmaker has teamed up with an anti-choice organization to raise awareness about the supposed prevalence of forced or coerced abortion, which critics say is “wildly divorced from reality.”
Rep. Molly White (R-Belton) during a press conference at the state capitol on July 13 announced an effort to raise awareness among public officials and law enforcement that forced abortion is illegal in Texas.
White said in a statement that she is proud to work alongside The Justice Foundation (TJF), an anti-choice group, in its efforts to tell law enforcement officers about their role in intervening when a pregnant person is being forced to terminate a pregnancy.
“Because the law against forced abortions in Texas is not well known, The Justice Foundation is offering free training to police departments and child protective service offices throughout the State on the subject of forced abortion,” White said.
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White was joined at the press conference by Allan Parker, the president of The Justice Foundation, a “Christian faith-based organization” that represents clients in lawsuits related to conservative political causes.
Parker told Rewire that by partnering with White and anti-choice crisis pregnancy centers (CPCs), TJF hopes to reach a wider audience.
“We will partner with anyone interested in stopping forced abortions,” Parker said. “That’s why we’re expanding it to police, social workers, and in the fall we’re going to do school counselors.”
White only has a few months remaining in office, after being defeated in a closely contested Republican primary election in March. She leaves office after serving one term in the state GOP-dominated legislature, but her short time there was marked by controversy.
During the Texas Muslim Capitol Day, she directed her staff to “ask representatives from the Muslim community to renounce Islamic terrorist groups and publicly announce allegiance to America and our laws.”
Heather Busby, executive director of NARAL Pro-Choice Texas, said in an email to Rewire that White’s education initiative overstates the prevalence of coerced abortion. “Molly White’s so-called ‘forced abortion’ campaign is yet another example that shows she is wildly divorced from reality,” Busby said.
There is limited data on the how often people are forced or coerced to end a pregnancy, but Parker alleges that the majority of those who have abortions may be forced or coerced.
‘Extremely common but hidden’
“I would say that they are extremely common but hidden,” Parker said. “I would would say coerced or forced abortion range from 25 percent to 60 percent. But, it’s a little hard be to accurate at this point with our data.”
Parker said that if “a very conservative 10 percent” of the about 60,000 abortions that occur per year in Texas were due to coercion, that would mean there are about 6,000 women per year in the state that are forced to have an abortion. Parker believes that percentage is much higher.
“I believe the number is closer to 50 percent, in my opinion,” Parker said.
Busby said that White used “flawed research” to lobby for legislation aimed at preventing coerced abortions in Texas.
“Since she filed her bogus coerced abortion bill—which did not pass—last year, she has repeatedly cited flawed research and now is partnering with the Justice Foundation, an organization known to disseminate misinformation and shameful materials to crisis pregnancy centers,” Busby said.
White also sponsored HB 1648, which would have required a law enforcement officer to notify the Department of Family and Protective Services if they received information indicating that a person has coerced, forced, or attempted to coerce a pregnant minor to have or seek abortion care.
The bill was met by skepticism by both Republican lawmakers and anti-choice activists.
State affairs committee chairman Rep. Byron Cook (R-Corsicana) told White during a committee hearing the bill needed to be revised, reported the Texas Tribune.
“This committee has passed out a number of landmark pieces of legislation in this area, and the one thing I think we’ve learned is they have to be extremely well-crafted,” Cook said. “My suggestion is that you get some real legal folks to help engage on this, so if you can keep this moving forward you can potentially have the success others have had.”
‘Very small piece of the puzzle of a much larger problem’
White testified before the state affairs committee that there is a connection between women who are victims of domestic or sexual violence and women who are coerced to have an abortion. “Pregnant women are most frequently victims of domestic violence,” White said. “Their partners often threaten violence and abuse if the woman continues her pregnancy.”
There is research that suggests a connection between coerced abortion and domestic and sexual violence.
Dr. Elizabeth Miller, associate professor of pediatrics at the University of Pittsburgh, told the American Independent that coerced abortion cannot be removed from the discussion of reproductive coercion.
“Coerced abortion is a very small piece of the puzzle of a much larger problem, which is violence against women and the impact it has on her health,” Miller said. “To focus on the minutia of coerced abortion really takes away from the really broad problem of domestic violence.”
A 2010 study co-authored by Miller surveyed about 1,300 men and found that 33 percent reported having been involved in a pregnancy that ended in abortion; 8 percent reported having at one point sought to prevent a female partner from seeking abortion care; and 4 percent reported having “sought to compel” a female partner to seek an abortion.
Another study co-authored by Miller in 2010 found that among the 1,300 young women surveyed at reproductive health clinics in Northern California, about one in five said they had experienced pregnancy coercion; 15 percent of the survey respondents said they had experienced birth control sabotage.
‘Tactic to intimidate and coerce women into not choosing to have an abortion’
TJF’s so-called Center Against Forced Abortions claims to provide legal resources to pregnant people who are being forced or coerced into terminating a pregnancy. The website includes several documents available as “resources.”
One of the documents, a letter addressed to “father of your child in the womb,” states that that “you may not force, coerce, or unduly pressure the mother of your child in the womb to have an abortion,” and that you could face “criminal charge of fetal homicide.”
The letter states that any attempt to “force, unduly pressure, or coerce” a women to have an abortion could be subject to civil and criminal charges, including prosecution under the Federal Unborn Victims of Violence Act.
The document cites the 2007 case Lawrence v. State as an example of how one could be prosecuted under Texas law.
“What anti-choice activists are doing here is really egregious,” said Jessica Mason Pieklo, Rewire’s vice president of Law and the Courts. “They are using a case where a man intentionally shot his pregnant girlfriend and was charged with murder for both her death and the death of the fetus as an example of reproductive coercion. That’s not reproductive coercion. That is extreme domestic violence.”
“To use a horrific case of domestic violence that resulted in a woman’s murder as cover for yet another anti-abortion restriction is the very definition of callousness,” Mason Pieklo added.
Parker said a patient might go to a “pregnancy resource center,” fill out the document, and staff will “send that to all the abortionists in the area that they can find out about. Often that will stop an abortion. That’s about 98 percent successful, I would say.”
Reproductive rights advocates contend that the document is intended to mislead pregnant people into believing they have signed away their legal rights to abortion care.
Abortion providers around the country who are familiar with the document said it has been used for years to deceive and intimidate patients and providers by threatening them with legal action should they go through with obtaining or providing an abortion.
Vicki Saporta, president and CEO of the National Abortion Federation, previously told Rewire that abortion providers from across the country have reported receiving the forms.
“It’s just another tactic to intimidate and coerce women into not choosing to have an abortion—tricking women into thinking they have signed this and discouraging them from going through with their initial decision and inclination,” Saporta said.
Busby said that the types of tactics used by TFJ and other anti-choice organizations are a form of coercion.
“Everyone deserves to make decisions about abortion free of coercion, including not being coerced by crisis pregnancy centers,” Busby said. “Anyone’s decision to have an abortion should be free of shame and stigma, which crisis pregnancy centers and groups like the Justice Foundation perpetuate.”
“Law enforcement would be well advised to seek their own legal advice, rather than rely on this so-called ‘training,” Busby said.
The grand jury returned indictments against Daleiden and Merritt on felony charges of tampering with an official government document for purportedly using a fraudulent driver's license to gain access to a Planned Parenthood center in Houston.
UPDATE, July 26, 2:47 p.m.: This piece has been updated to include a statement from Planned Parenthood.
On Tuesday, the Harris County District Attorney’s office in Texas dismissed the remaining criminal charges against anti-choice activists David Daleiden and Sandra Merritt related to their production of widely discredited, heavily edited videos alleging Planned Parenthood was illegally profiting from fetal tissue donations.
The criminal charges against the pair originally stemmed from Republican Texas lawmakers’ responses to the videos’ release. Attorney General Ken Paxton, Gov. Greg Abbott, and Lt. Gov. Dan Patrick all called for the Harris County District attorney’s Office to begin a criminal investigation into Planned Parenthood Gulf Coast last August, after the release of one video that featured clinic staff in Houston talking about the methods and costs of preserving fetal tissue for life-saving scientific research.
A Texas grand jury found no evidence of wrongdoing by Planned Parenthood staff and declined to bring any criminal charges against the health-care provider. More than a dozen state and federal investigations have similarly turned up no evidence of lawbreaking by the reproductive health-care provider.
Instead, in January, the grand jury returned indictments against Daleiden and Merritt on felony charges of tampering with an official government document for purportedly using a fraudulent driver’s license to gain access to a Planned Parenthood center in Houston. Daleiden was also indicted on a misdemeanor charge related to trying to entice a third party to unlawfully purchase human organs.
A Texas judge in June dismissed the misdemeanor charge against Daleiden on procedural grounds.
“This meritless and retaliatory prosecution should never have been brought,” said Daleiden’s attorney, Peter Breen of the Thomas More Society, in a statement following the announcement that the district attorneys office was dismissing the indictment. “Planned Parenthood did wrong here, not David Daleiden.”
“Planned Parenthood provides high-quality, compassionate health care and has been cleared of any wrongdoing time and again. [Daleiden] and other anti-abortion extremists, on the other hand, spent three years creating a fake company, creating fake identities, and lying. When they couldn’t find any improper or illegal activity, they made it up. They spread malicious lies about Planned Parenthood in order to advance their anti-abortion agenda. The decision to drop the prosecution on a technicality does not negate the fact that the only people who engaged in wrongdoing are the extremists behind this fraud,” Melaney A. Linton, President and CEO of Planned Parenthood Gulf Coast, said in a statement emailed to Rewire after publication.
The district attorney’s dismissal of the felony charges against Daleiden and Merritt happened just before a scheduled court hearing requested by their attorneys to argue the felony indictment should be dismissed.
Daleiden still faces three civil lawsuits elsewhere in the country related to the creation and release of the Planned Parenthood videos.