News Law and Policy

Judge Hears Closing Arguments in Texas Abortion Law Case

Andrea Grimes

On the last day of arguments in the latest challenge to Texas' omnibus anti-abortion law, Judge Lee Yeakel pushed lawyers both for the plaintiffs and the State of Texas to answer the key question posed in practically every abortion case since Roe v. Wade: "Exactly what is an undue burden?"

Read more of our coverage on the HB 2 hearing here.

A federal judge once again advised counsel to keep their arguments focused on legal reasoning, rather than emotional pleas, on the last day of arguments in Whole Woman’s Health v. Lakey, the latest challenge to a Texas’ omnibus anti-abortion law expected to shutter all but seven existing abortion providers in the state come September 1, barring judicial intervention.

Judge Lee Yeakel pushed lawyers both for the plaintiffs—a group of independent Texas abortion providers from across the state who say they have been forced to close clinic doors in the wake of HB 2‘s passage—and the State of Texas, which is defending the law, to answer the key question posed in practically every abortion case since Roe v. Wade: “Exactly what is an undue burden?”

Both sides, predictably, answered that decades-old question very differently, though lines of questioning from the judge seemed to indicate that he might be inclined to agree with plaintiffs’ arguments that the law would place substantial obstacles between Texans and legal abortion care. Judge Yeakel also said he found it “disturbing” that the state had attempted to “hide” its use of an anti-choice psychoanalyst from North Carolina who assisted the state’s experts in drafting testimony.

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Jonathan Mitchell, a deputy attorney general for the State of Texas, argued that because a computer analyst working for the Texas attorney general’s office had estimated that about 90 percent of women of reproductive age in Texas would live within about 150 miles of an abortion provider should HB 2 go into full effect, the law would place no undue burden on abortion-seeking Texans. A “large fraction” of Texans, he argued, would not be faced with a substantial obstacle to legal abortion care.

But Stephanie Toti of the Center for Reproductive Rights, arguing for the plaintiffs, said that HB 2 “essentially amounts to a $3 million tax on the performance of abortions in the state,” referencing estimates given to Texas abortion providers regarding the costs to upgrade to, or build entirely, hospital-like abortion-providing ambulatory surgical centers required under HB 2. Because only a handful of existing, urban abortion providers could comply with the law, Toti argued, HB 2 would have the effect of severely limiting abortion access for anyone who could not make an overnight trip to a large city to access legal abortion care.

Deputy AG Mitchell also argued that whatever evidence—insubstantial or even non-existent in the state’s view—the plaintiffs may have shown that HB 2 would be difficult to comply with for abortion providers, or would deter some Texans from accessing legal abortion care, the plaintiffs had not met the burden of proof required by the Fifth Circuit Court of Appeals. HB 2, argued Mitchell, “fits comfortably” within the “safe harbors” afforded abortion regulations by the Fifth Circuit, and noted that the plaintiffs had not brought to the stand any individual woman who had been unable to access a legal abortion as a result of HB 2.

Parts of HB 2 have already gone into effect and are unchallenged in this court case: the ban on abortion after 20 weeks and the severe restriction of medication abortions. In this suit, the plaintiffs challenge HB 2’s requirement that abortion providers obtain admitting privileges at local hospitals—specifically as it applies to doctors in the Rio Grande Valley and El Paso—and that all abortion facilities operate as ambulatory surgical centers.

Judge Yeakel, who interrupted counsel a number of times to push them to elaborate on their arguments and question them on recent Fifth Circuit rulings in a previous Texas lawsuit and on an admitting privileges suit in Mississippi, mused in court as to whether abortion, as a medical procedure, was being uniquely targeted by state lawmakers, and whether a day-long drive or overnight stay would be acceptable burdens for accessing any other kind of medical care.

“If you had a sprained ankle, would we stand for that?” asked Yeakel, questioning Toti. “Would we stand for that if you needed an appendectomy? Is there any other procedure where we would stand for an entire day to have a minor procedure done?”

Yeakel also peppered both sides with constitutional questions related to the 14th amendment, which grants all Americans equal protection under the law, and asked whether the large number of Texans affected by HB 2, even if it was not a “large fraction” of the Texas population, should be taken into account.

He also challenged the state’s assertion that, per the Fifth Circuit Court of Appeals, a distance of under 150 miles from a Texan’s home to an abortion clinic would not constitute an undue burden and wondered why HB 2’s increased travel time requirements, and related increased costs of abortion care, would only need to burden a small population of low-income Texans living in the Rio Grande Valley and El Paso.

“If a rich woman who drives a Mercedes, and drives it fast, wants to visit an abortion clinic, why is [HB 2] not an undue burden for her?” asked Yeakel. He later added that he has “a problem with believing it’s reasonable to require anyone to travel 150 miles for medical care when they could get medical care closer.

Yeakel also questioned the extent to which anti-choice North Carolina psychoanalyst Vincent Rue had helped the state’s experts craft their testimonies, and said he found it “very disturbing” that the state had attempted to “hide” Rue’s involvement under the auspices of attorney-client privilege.

Wednesday’s closing arguments came after four days of testimony the previous week, wherein Texas abortion providers said they’d been forced to close clinics after their doctors were unable to obtain admitting privileges in the Rio Grande Valley and El Paso, and that they would be unable to afford the million-dollar or more costs involved in building abortion-providing ambulatory surgical centers (ASCs). Experts for the state countered that ASC building costs had been overblown, and that abortion as a procedure is more dangerous than is reported in mainstream science publications, necessitating the ASC and admitting privileges mandates.

Judge Yeakel is expected to issue a written opinion before HB 2’s ambulatory surgical center provision goes into effect on September 1. Legal experts told Rewire that whichever side loses this round of federal hearings is almost certain to appeal it to the Fifth Circuit Court of Appeals in New Orleans, and that the case could eventually make its way all the way to the Supreme Court.

News Politics

Clinton Campaign Announces Tim Kaine as Pick for Vice President

Ally Boguhn

The prospect of Kaine’s selection has been criticized by some progressives due to his stances on issues including abortion as well as bank and trade regulation.

The Clinton campaign announced Friday that Sen. Tim Kaine (R-VA) has been selected to join Hillary Clinton’s ticket as her vice presidential candidate.

“I’m thrilled to announce my running mate, @TimKaine, a man who’s devoted his life to fighting for others,” said Clinton in a tweet.

“.@TimKaine is a relentless optimist who believes no problem is unsolvable if you put in the work to solve it,” she added.

The prospect of Kaine’s selection has been criticized by some progressives due to his stances on issues including abortion as well as bank and trade regulation.

Kaine signed two letters this week calling for the regulations on banks to be eased, according to a Wednesday report published by the Huffington Post, thereby ”setting himself up as a figure willing to do battle with the progressive wing of the party.”

Charles Chamberlain, executive director of the progressive political action committee Democracy for America, told the New York Times that Kaine’s selection “could be disastrous for our efforts to defeat Donald Trump in the fall” given the senator’s apparent support of the Trans-Pacific Partnership (TPP). Just before Clinton’s campaign made the official announcement that Kaine had been selected, the senator praised the TPP during an interview with the Intercept, though he signaled he had ultimately not decided how he would vote on the matter.

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Kaine’s record on reproductive rights has also generated controversy as news began to circulate that he was being considered to join Clinton’s ticket. Though Kaine recently argued in favor of providing Planned Parenthood with access to funding to fight the Zika virus and signed on as a co-sponsor of the Women’s Health Protection Act—which would prohibit states and the federal government from enacting restrictions on abortion that aren’t applied to comparable medical services—he has also been vocal about his personal opposition to abortion.

In a June interview on NBC’s Meet the Press, Kaine told host Chuck Todd he was “personally” opposed to abortion. He went on, however, to affirm that he still believed “not just as a matter of politics, but even as a matter of morality, that matters about reproduction and intimacy and relationships and contraception are in the personal realm. They’re moral decisions for individuals to make for themselves. And the last thing we need is government intruding into those personal decisions.”

As Rewire has previously reported, though Kaine may have a 100 percent rating for his time in the Senate from Planned Parenthood Action Fund, the campaign website for his 2005 run for governor of Virginia promised he would “work in good faith to reduce abortions” by enforcing Virginia’s “restrictions on abortion and passing an enforceable ban on partial birth abortion that protects the life and health of the mother.”

As governor, Kaine did support some existing restrictions on abortion, including Virginia’s parental consent law and a so-called informed consent law. He also signed a 2009 measure that created “Choose Life” license plates in the state, and gave a percentage of the proceeds to a crisis pregnancy network.

Regardless of Clinton’s vice president pick, the “center of gravity in the Democratic Party has shifted in a bold, populist, progressive direction,” said Stephanie Taylor, co-founder of the Progressive Change Campaign Committee, in an emailed statement. “It’s now more important than ever that Hillary Clinton run an aggressive campaign on core economic ideas like expanding Social Security, debt-free college, Wall Street reform, and yes, stopping the TPP. It’s the best way to unite the Democratic Party, and stop Republicans from winning over swing voters on bread-and-butter issues.”

News Abortion

Parental Notification Law Struck Down in Alaska

Michelle D. Anderson

"The reality is that some young women face desperate circumstances and potentially violent consequences if they are forced to bring their parents into their reproductive health decisions," said Janet Crepps, senior counsel at the Center for Reproductive Rights. "This law would have deprived these vulnerable women of their constitutional rights and put them at risk of serious harm."

The Alaska Supreme Court has struck down a state law requiring physicians to give the parents, guardians, or custodians of teenage minors a two-day notice before performing an abortion.

The court ruled that the parental notification law, which applies to teenagers younger than 18, violated the Alaska Constitution’s equal protection guarantee and could not be enforced.

The ruling stems from an Anchorage Superior Court decision that involved the case of Planned Parenthood of the Great Northwest and the Hawaiian Islands and physicians Dr. Jan Whitefield and Dr. Susan Lemagie against the State of Alaska and the notification law’s sponsors.

In the lower court ruling, a judge denied Planned Parenthood’s requested preliminary injunction against the law as a whole and went on to uphold the majority of the notification law.

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Planned Parenthood and the physicians had appealed that superior court ruling and asked for a reversal on both equal protection and privacy grounds.

Meanwhile, the State of Alaska and the notification law’s sponsors appealed the court’s decision to strike some of its provisions and the court’s ruling.

The notification law came about after an initiative approved by voters in August 2010. The law applied to “unemancipated, unmarried minors” younger than 18 seeking to terminate a pregnancy and only makes exceptions in documented cases of abuse and medical emergencies, such as one in which the pregnant person’s life is in danger.

Justice Daniel E. Winfree wrote in the majority opinion that the anti-choice law created “considerable tension between a minor’s fundamental privacy right to reproductive choice and how the State may advance its compelling interests.”

He said the law was discriminatory and that it could unjustifiably burden “the fundamental privacy rights only of minors seeking pregnancy termination, rather than [equally] to all pregnant minors.”

Chief Justice Craig Stowers dissented, arguing that the majority’s opinion “unjustifiably” departed from the Alaska Supreme Court’s prior approval of parental notification.

Stowers said the opinion “misapplies our equal protection case law by comparing two groups that are not similarly situated, and fails to consider how other states have handled similar questions related to parental notification laws.”

Center for Reproductive Rights (CRR) officials praised the court’s ruling, saying that Alaska’s vulnerable teenagers will now be relieved of additional burdensome hurdles in accessing abortion care. Attorneys from the American Civil Liberties Union, CRR, and Planned Parenthood represented plaintiffs in the case.

Janet Crepps, senior counsel at CRR, said in a statement that the “decision provides important protection to the safety and well-being of young women who need to end a pregnancy.”

“The reality is that some young women face desperate circumstances and potentially violent consequences if they are forced to bring their parents into their reproductive health decisions. This law would have deprived these vulnerable women of their constitutional rights and put them at risk of serious harm,” Crepps said.

CRR officials also noted that most young women seeking abortion care involve a parent, but some do not because they live an abusive or unsafe home.

The American Medical Association, the American College of Obstetricians and Gynecologists, and the Society for Adolescent Medicine have said minors’ access to confidential reproductive health services should be protected, according to CRR.