Court Battle Continues Over TX Abortion Regulations

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Updated 4:40 p.m.: 

Abortion providers and state attorneys will present their final arguments Wednesday morning on whether the restrictions on the procedure in House Bill 2 are constitutional. 

“What I want is focused argument on this statute and why it lives or dies under the law as it exists at this time,” said U.S. District Judge Lee Yeakel, who has allotted one hour for each side to make its final argument. “And I think that is better served if we argue tomorrow.”

Both sides wrapped up witness testimony and other court business on Tuesday. 

The plaintiff’s final witness, Amy Hagstrom Miller, founder and CEO of Whole Woman’s Health, countered the state’s claim that providers could expand their ability to perform abortions by recruiting new doctors with active hospital admitting privileges.

“The physicians who are trained in Texas to provide abortion care, who could provide abortion care, are either fearful, unwilling or unable to make the commitment,” said Hagstrom Miller. “Either they’re prohibited at their current practice or they’re afraid to make the commitment to provide abortion care with us.”

Whole Woman’s Health has advertised physician positions in medical publications and online listservs for medical professionals in reproductive health care, said Hagstrom Miller. She has also attended national family planning conferences to find additional doctors.

“In fact, we even had difficulty recruiting physicians who would agree to sign on as the back-up if our doctors failed to get privileges,” she said, adding that Whole Woman’s Health has also contacted the physicians in Texas who actively refer patients to its facilities with letters, phone calls and in-person visits.

One physician who recently finished her residency would have qualified for hospital admitting privileges and had agreed to work at the Whole Woman’s Health facility in McAllen but backed out after the passage of HB 2, said Hagstrom Miller.

“We regularly have protesters at some of our clinics. We receive bomb threats. We receive threatening phone calls from time to time,” she said. Staff members have also been individually harassed, she said; two physicians had their photos posted online by Operation Rescue, an anti-abortion group.

During the cross-examination of Hagstrom Miller, Arthur D’Andrea, an assistant solicitor general representing the state, highlighted the annual revenue Whole Woman’s Health receives at each of its abortion facilities across the state, ranging from $600,000 to $1.4 million. He suggested Whole Woman’s Health could raise the cost of its procedures to cover the additional costs associated with the provisions in HB 2.

Hagstrom Miller said she has considered raising the price of an abortion to pay for the additional hurdles created by the law, but she did not believe it was ethical to put that burden on patients. “Raising the fee by $50 could potentially be cost-prohibitive,” she said, because the vast majority of patients are uninsured and receive financial aid to help them pay for the procedure.

D’Andrea also emphasized during the cross-examination that requiring hospital admitting privileges would ensure hospitals review their physicians’ board certifications, medical licensure and perform background checks. Hagstrom Miller said that her organization already vets physicians by performing those tasks and that it is unnecessary to have a hospital duplicate the effort.

D'Andrea argued that if an abortion recipient comes to a hospital emergency room with complications, the cost of that patient’s care falls on either the patient or on taxpayers, who would cover the patient’s emergency care via Medicaid or taxes that cover uncompensated care.

Original story: 

Abortion providers and state's attorneys continued their court battle Tuesday over a bid to delay implementation of new abortion regulations. 

John Scott, one of the state’s attorneys, began the second day of the proceedings by finishing cross-examination of Dr. Joseph Potter, the principal investigator of the Texas Policy Evaluation Project at the University of Texas in Austin, a three-year study evaluating the impact of the 2011 budget cuts to family planning financing in Texas. Potter testified on Monday that the provisions in House Bill 2 would cause 22,000 women to lose access to abortion services.

Scott pressed Potter to reveal the names of the donors who financed his research. Potter said those donors asked him not to reveal their names unless legally obligated. “If I am legally obligated to tell you, I would be happy to tell you,” said Potter.

U.S. District Judge Lee Yeakel, who is presiding over the hearing, determined that the names of the donors were not relevant. “I think whether there is any bias or prejudice is adequately in the record,” he said, adding that he would assume given the information provided to the plaintiffs through the research “that those organizations or individuals probably favor the plaintiffs' side.”

Yeakel said that he would find Potter’s testimony more persuasive if he could reveal the specific names of clinics that would close or lose capacity as a result of the law. Although the plaintiffs’ attorneys offered to provide the names of those clinics, they said Potter could not reveal those names, because the information was given to him under legal confidentiality.

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, have 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 argues that these provisions were not approved just to protect the safety of the mother, but that they were also enacted to advance the state’s interest in promoting and protecting fetal life.

Yeakel said he'd like to make a decision as soon as possible after arguments conclude; both sides are expected to wrap up their arguments on Tuesday. Yeakel recessed for lunch, and the hearing will resume at 1:30 p.m. 

During his cross-examination, Scott also emphasized that the researchers had not done any economic analysis of the clinics in question and had relied on information provided by the plaintiffs and other clinics.

The next witness for the plaintiffs, Andrea Ferrigno, corporate vice president for Whole Woman’s Health, testified about the difficulty that her organization has experienced attempting to obtain active hospital admitting privileges for the 11 physicians who work at its five Texas abortion facilities.

Ferrigno said that Whole Woman’s Health has contacted 32 hospitals for more information on applying for admitting privileges and received varying degrees of response — some sent pre-applications after a few days or weeks, while others still have not responded. The organization submitted 15 applications for physicians to obtain privileges, and have not received any responses. Currently, only two physicians have admitting privileges in Austin, and one physician has admitting privileges in Beaumont.

There are various obstacles to receiving admitting privileges, Ferrigno said. For example, she said, one of the hospitals within 30 miles of the Whole Woman’s Health facility in San Antonio requires physicians to live within a reasonable distance, but the three physicians who work at that facility live in Austin, Houston and Providence, R.I. Similarly, the hospital near its McAllen facility requires medical board certification, but the doctor who works at that facility is not board-certified. Ferrigno said that when the doctor operated a private practice, board certification was not a requirement, and he’s now retired and has provided only reproductive health care for a few years.

Currently, there are two abortion facilities in McAllen that serve the Rio Grande Valley. The other facility, Reproductive Services, has announced it will close next week, and Ferrigno said that Whole Woman’s Health of McAllen would probably close because it does not have a physician with active hospital admitting privileges.

“That means people won’t have any access to safe and legal services in the entire Rio Grande Valley,” said Ferrigno. Although some say that women could travel to Corpus Christi or San Antonio to access abortion services, she said it is not that simple. For example, she said, some immigrants have visas that only allow them to work and travel within the Rio Grande Valley and could not travel to those cities, because they would be denied entry at immigration checkpoints. Additionally, the cost of traveling is prohibitive for many Rio Grande Valley residents. “I’m just really concerned about what women are going to do when they can’t access safe services,” she said.

Philip Lionberger, one of the state’s attorneys, questioned the standard of care at Whole Woman’s Health during his cross-examination of Ferrigno. He emphasized that the FDA regimen requires the patient to take three Mifeprex pills and return to the clinic two days later to receive a dose of misoprostol, but Whole Woman’s Health does not follow that protocol. Instead, it follows the evidence-based protocol and gives the woman one Mifeprex pill and a dose of misoprostol to take at home, without returning the clinic.

To ensure women take the medication safely at home, Ferrigno said, Whole Woman patients watch an instructional video at the clinic and receive written instructions on how they’re supposed to take the medication, the feelings they may experience and how to respond to adverse reactions.

Lionberger also pointed out that Whole Woman’s Health allows female patients less than 18 years of age to take misoprostol at home. “They can go take it on their own, as long as you’re satisfied that there is someone on call to help them if they need help,” he said.

Most minors must have parental consent to have an abortion and therefore are likely to be supervised when taking the medication at home. Some minors may receive a judicial bypass to have an abortion without parental consent. Those patients are not required to have adult supervision while taking the second medication at home, Lionberger emphasized.

“This judicial bypass was granted, because she has the maturity to make that decision without parental consent,” Ferrigno said in defense of Whole Woman's Health facilities’ practices, adding that caregivers try to ensure every patient has someone on call to assist her.

The FDA regimen has a shorter timeframe — 49 days compared with 63 days since the woman’s last menstrual period — in which a woman can receive a medical abortion. Lionberger said Whole Woman’s Health had performed 5,094 medical abortions in 2011 and 2012, and “less than 1 percent of your medical abortions occurred between 49 and 63 days.”

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.  

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