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Seeking to block the state of Texas from implementing new abortion regulations, plaintiffs representing abortion providers argued Monday in a federal court that the state’s law violates the constitutional right of women to access the procedure. But the state’s attorneys defended Texas’ right to enact laws that advance protections for the life of a fetus.
U.S. District Judge Lee Yeakel, who presided over the hearing, in which arguments are scheduled to wrap up on Tuesday, was clear about what the court's role was. “This court’s job is not to rule on whether women should be allowed abortions,” said Yeakel, “but to rule on whether or not this statute comes within the existing constitutional confine.”
Given the significance of the law, Yeakel said he'd like to make a decision as soon as possible after arguments conclude.
The plaintiffs, who represent the majority of abortion providers in Texas, including four Planned Parenthood affiliates, Whole Woman’s Health and other independent abortion providers, asked the court for a preliminary injunction to block the implementation of two provisions in House Bill 2 that would take effect Oct. 29: a requirement that doctors who perform abortion have active admitting privileges at a hospital within 30 miles of the facility, and that doctors follow the FDA regimen, rather than a commonly used evidenced-based protocol, for drug-induced abortions. The plaintiffs argued that both of these provisions present an undue burden on women attempting to access abortion and are therefore unconstitutional.
The attorney general’s office argued that these provisions were not approved just to protect the safety of the mother. They were also enacted to advance the state’s interest in promoting and protecting fetal life, one state attorney said at the hearing. The burden of proof lies on the plaintiffs, the attorney said, as the U.S. Supreme Court’s ruling in Casey v. Planned Parenthood allows the state to enact laws that advance its interest in protecting fetal life, so long as it does not create an undue burden on the patient. The court could not overturn the provisions in whole, the state’s attorney argued, because a severability clause in the law requires doctors and patients who believe their constitutional rights have been violated by the law to individually seek exclusion from its provisions.
The state’s attorneys also argued it was not possible to prove — as the plaintiffs allege in the case — that one in three abortion facilities would not be able to perform abortions or that 22,000 women would be prevented from accessing the service until the law took effect.
Yeakel recognized the divisiveness of the issue and said he expects whichever side is disappointed with his ruling to appeal the decision, probably all the way to the U.S. Supreme Court. “I would be shocked if whoever was displeased by my ruling did not appeal,” he said.
Only one witness was able to testify before the court recessed for lunch until 2 p.m. Monday.
“Currently, there’s no abortion clinics west of I-35 that will be able to perform this service,” because doctors at those facilities do not have admitting hospital privileges, testified Dr. Paul Fine, the medical director for Planned Parenthood Gulf Coast and Planned Parenthood Center for Choice. Hospitals are not required to grant those doctors privileges, and the plaintiffs said they found that a third of existing abortion facilities would not have a doctor with admitting privileges on Oct. 29. As a result, they argued women would no longer be able to access abortion services in Lubbock, Fort Worth, Waco, McAllen, Harlingen and Killeen.
Although he has admitting privileges at Ben Taub hospital in Houston, Fine said that in the case of an emergency, it is unlikely he would be called to treat a patient. Women would most likely be taken to the closest facility, which may not be the facility that the abortion provider has privileges at, he said, and then receive treatment from emergency medical staff and the doctors on call for obstetrics and gynecology.
Following the FDA regimen for abortion-inducing drugs isn’t unsafe, but it is less effective and has more side effects than the evidence-based protocol followed by most abortion providers, said Fine, who participated in the FDA’s clinical trial for Mifeprex, the abortion-inducing drug. He said the FDA regimen requires three pills, instead of one — at a cost of $90 per pill — and shortens the time limit on medical abortions by two weeks to 49 days gestation. The evidence-based regimen also adds the use of antibiotics to prevent infection.
More than 1.75 million women have had drug-induced abortions since the FDA approved the Mifeprex for abortion in 2000, said Fine, and only eight women have died of an infection related to taking the drug. Given the rate of death associated with the medication, he said, it is safer than penicillin.
This story was produced with the support of the Dennis A. Hunt Fund for Health Journalism, a program of the USC Annenberg School of Journalism's California Endowment for Health Journalism Fellowships, and in partnership with Kaiser Health News, an editorially independent program of the Henry J. Kaiser Family Foundation, a nonprofit, nonpartisan health policy research and communication organization not affiliated with Kaiser Permanente.
This article originally appeared in The Texas Tribune at http://www.texastribune.org/2013/10/21/abortion-rights-advocates-battle-state-court/.
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