Updated Nov. 12, 4 p.m.:
State attorneys filed a response on Tuesday to abortion providers’ request for the U.S. Supreme Court to intervene in the ongoing legal battle over the constitutionality of Texas' new regulations on the procedure.
Abortion providers on Monday asked the U.S. Supreme Court to reinstate a lower federal court’s injunction that blocked Texas from implementing strict new abortion rules, which the 5th Circuit Court of Appeals lifted. Justice Antonin Scalia, who is considering the plaintiffs' request, ordered the state to respond by Nov. 12.
“The applicants focus almost exclusively on their claim that ‘approximately 20,000 Texas women' will be unable to obtain abortions each year on account of HB2’s hospital-admitting privileges requirement,” the Texas attorney general’s office responded on Tuesday. “But a litigant does not establish a factual proposition by asserting it to be so.”
The state’s attorneys debate evidence presented by the plaintiffs that 13 abortion facilities that do not have a physician with nearby hospital admitting privileges would be forced to stop performing abortion, leading an estimated 20,000 women to lose access to abortion services. The state argues there’s not enough evidence that remaining abortion providers could not take on those additional patients.
The 5th Circuit plans to hold a hearing to fully consider the case in January. The state’s attorneys argued in their response that it’s “hard to imagine” the Supreme Court would reconsider the case after the 5th Circuit, unless the 5th Circuit’s ruling conflicts with the 7th Circuit’s ruling on a similar hospital admitting privileges requirement in Wisconsin. “The applicants do not allege that this scenario is ‘likely,’ and it is highly unlikely, especially when the Wisconsin and Texas cases are likely to turn on features unique to each state's abortion market,” state attorneys note in their response.
The plaintiffs anticipate that Scalia will issue an expedited decision shortly after receiving the state's response. He could also refer the case to the entire U.S. Supreme Court. If Scalia does not reverse the 5th Circuit's decision or refer the case to the whole court, the plaintiffs may ask another Supreme Court justice to consider the case. If the case is not considered by the U.S. Supreme Court, it will still proceed in the 5th Circuit.
Updated Nov. 4, 2013, 9:15 a.m.:
Abortion providers on Monday asked the U.S. Supreme Court to reinstate a lower federal court’s injunction that blocked Texas from implementing strict new abortion rules.
“Right now, women in vast swaths of Texas are being turned away at clinic doors because of a bogus law that attempts to do underhandedly what states cannot do directly — block women from accessing abortion services," said Nancy Northup, president and CEO of the Center for Reproductive Rights. “We now look to the Supreme Court to protect women's access to these essential health care services while we fight this critical court battle.”
The 5th Circuit Court of Appeals on Thursday lifted a lower court’s injunction, allowing the state to implement two provisions in House Bill 2 that require abortion providers to obtain hospital admitting privileges nearby the facility and follow federal guidelines, rather than a common, evidence-based protocol, when administering drug-induced abortions.
Justice Antonin Scalia, who is considering the plaintiffs' request, has ordered the state to respond by Nov. 12. The plaintiffs anticipate that Scalia will issue an expedited decision shortly after receiving the state's response. He could also refer the case to the entire U.S. Supreme Court. If Scalia does not reverse the 5th Circuit's decision or refer the case to the whole court, the plaintiffs may ask another Supreme Court justice to consider the case. If the case is not considered by the U.S. Supreme Court, it will still proceed in the 5th Circuit, which has scheduled a hearing in January 2014.
The plaintiffs argue that a third of abortion providers in the state have been unable to obtain hospital admitting privileges and that, as a result, more than 100 women had their abortion procedures canceled on Friday and many more are unable to schedule appointments. The Tribune has confirmed that at least nine abortion facilities have stopped performing abortions due to the new law.
Marni Evans and her fiancé, John Lockhart, whose abortion procedure in Austin was canceled on Friday, spoke to the Tribune about the impact of the law on Sunday.
After the U.S. 5th Circuit Court of Appeals’ decision Thursday to lift an injunction on new abortion regulations in Texas, at least nine abortion facilities — about a quarter of the state's abortion providers — have discontinued abortion services in light of the new law.
The court’s decision is “having an immediate impact starting today, and what that impact is depends on each woman and where she lives,” said Sarah Wheat, vice president for community affairs for Planned Parenthood of Greater Texas. Planned Parenthood has discontinued abortion services at four Texas locations: Fort Worth, Austin, Waco and Lubbock. Wheat said staff members began calling patients to cancel appointments Thursday evening soon after the appellate ruling came down.
“Depending on that patient and what her circumstances are, we’re either referring her to another health center in that same community or telling her which cities she’ll have to travel to,” Wheat said.
A three-judge panel in the 5th Circuit court lifted a permanent injunction placed on the abortion regulations Monday by a federal district court. In a written opinion, the panel argued that the state was likely to succeed in its legal arguments. The court scheduled an expedited hearing for January 2014.
The appellate court's decision overrules U.S. District Judge Lee Yeakel’s ruling that a provision in House Bill 2 that requires abortion doctors to have admitting privileges at a nearby hospital imposed an undue burden on women seeking the procedure. Additionally, Yeakel ruled that it would be unconstitutional for the state to require physicians to follow federal standards for drug-induced abortions if a physician determined it would be safer for the woman to use a common evidence-based protocol.
"The law is in effect and facilities are required to comply effective immediately," Carrie Williams, spokeswoman for the Department of State Health Services, said in an email. "The new requirements will be part of our review criteria when inspecting facilities."
Marni Evans, 37, a self-employed sustainability consultant, was scheduled to undergo a surgical abortion on Friday morning at a Planned Parenthood clinic in Austin. She said in an interview that she received a call from Planned Parenthood late Thursday evening informing her that her procedure for the following day had been canceled due to the appellate court ruling.
“My first reaction was to feel fairly devastated, to feel like my rights were being taken away from me,” Evans said, "to feel very disappointed that elected officials had the ability to make decisions about my and my fiancé’s life.”
After the cancellation, Evans went online to find another provider. She said she struggled to determine which abortion clinics around the state were still providing abortion services and had available appointments.
At six and a half weeks pregnant, Evans said, “it is important for me to have an abortion now, and I think probably less painful, less expensive and less emotionally heart-wrenching.” To avoid delaying the procedure, she decided to purchase a plane ticket to Seattle, where she previously lived, to have the procedure at a Planned Parenthood clinic there. She used frequent flyer miles she said she had saved for her honeymoon.
“I would love to start a family at a later time with my fiancé after we’re married,” she said, “but financially, we’re just not in a position to even afford health care right now, let alone a child.”
Abortion opponents and several state leaders are praising the appellate court’s ruling.
“While the Supreme Court prohibits state legislatures from banning most abortions, states should have the right to protect women from dangerous abortion procedures,” Joe Pojman, the executive director of Texas Alliance for Life, said in a statement. He said the provisions would increase patient safety and lauded the appellate court for allowing them to take effect.
The appellate court’s decision “affirms our right to protect both the unborn and the health of the women of Texas,” Gov. Rick Perry said in a statement. “We will continue doing everything we can to protect a culture of life in our state.”
Wheat said the Planned Parenthood facilities that stopped performing abortions would remain open and continue providing other health services, such as cancer screenings, HIV testing and treatment for sexually transmitted diseases.
Abortion providers have expressed concerns that the regulations would mean additional travel for women seeking abortion services. They worry that would cause women to delay services, which could put them at higher medical risk. Dr. Joseph Potter, a researcher with the Texas Policy Evaluation Project at the University of Texas at Austin, has estimated that a third of the state's abortion providers, or 13 facilities, could stop providing abortion services as a result of the hospital admitting privileges requirement.
“It is a sad and dark day for women in Texas,” Amy Hagstrom Miller, founder and chief executive officer of Whole Woman’s Health, said in a statement. She said Whole Woman’s Health is stopping abortion services at three of its five locations — in Fort Worth, San Antonio and McAllen — because those locations do not have a physician with hospital admitting privileges within 30 miles of the facility. Whole Woman’s Health facilities in Beaumont and Austin will continue to provide abortion services.
“Women who need our care will not have nowhere to turn and the staff and physicians in our clinics now face furlough and likely unemployment,” she said.
At a press conference on Friday afternoon, Hagstrom Miller said the organization has canceled 45 appointments since the appellate court's ruling between the three clinics that have been forced to discontinue abortion services. She also clarified that the San Antonio facility would have limited abortion services still available, as a physician who has hospital admitting privileges nearby the facility will be flown in from out of state roughly once a month to provide services. Hagstrom Miller declined to comment on where exactly he will be flow in from.
She added they’re also planning to establish free transportation services to assist women who don’t have enough money to travel to available abortion providers.
The only other abortion provider in the Rio Grande Valley, Reproductive Services in Harlingen, is also discontinuing abortion services, because its physician does not have hospital admitting privileges. That means the closest abortion facility to the Rio Grande Valley is now in Corpus Christi, which is more than 100 miles away from McAllen and Harlingen.
A separate Reproductive Services clinic in El Paso has also stopped providing abortion services. While there is another abortion provider in El Paso and an abortion facility in nearby New Mexico, the next closest Texas abortion facilities to El Paso are in San Antonio and Dallas, which are more than 500 miles away. With abortion facilities in Midland and San Angelo recently shuttering, and with the Planned Parenthood clinic in Lubbock discontinuing abortion services, there are vast stretches of West Texas and the Panhandle without a nearby abortion provider.
Texas only allows abortions after 16 weeks gestation to be performed in ambulatory surgical centers. Although there are six ASCs in Texas that perform abortions, at least two — the Whole Woman’s Health facility in San Antonio and the Planned Parenthood facility in Fort Worth — have discontinued services after the appellate court ruling.
Two additional provisions in HB 2 remain unchallenged — a ban on abortions after 20 weeks of gestation, which took effect on Oct. 29, and a requirement that clinics meet the same standards as ambulatory surgical centers, which takes effect in September 2014.
While abortion opponents consider the appellate court's decision a victory, Emily Horne, a lobbyist for Texas Right to Life, said they're continuing their efforts to ensure the law is upheld. "It could be permanent, but it’s not yet," she said, "so we’re kind of waiting to see what happens with the trial in January."
David Maly contributed reporting to this story.
*Editor's note: An earlier version of this story said the closest abortion facility to El Paso would now be in Dallas, but there is another facility in El Paso, a closer facility in New Mexico, and a facility in San Antonio.
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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