Opening Statements Made in Trial Over Abortion Regulation
UPDATED: Attorneys made their opening arguments Monday in a U.S. district court trial over a provision that requires abortion facilities to meet the same regulations as ambulatory surgical centers.
Updated, Aug. 4, 6:02 p.m.:
On the first day of a trial over a new abortion regulation scheduled to take effect next month, attorneys for Texas abortion providers called witnesses who testified that the new requirement would leave low-income women in rural areas without reasonable access to abortion services.
The witnesses testified Monday after both sides made their opening arguments in a federal district court in Austin on the regulation, which would require abortion facilities to meet the same regulations as ambulatory surgical centers, or ASCs. The abortion providers claim that the measure, which was part of House Bill 2 and takes effect Sept. 1, will create an unconstitutional barrier for women seeking access to abortion. State attorneys say there isn’t evidence to show that the rules create an “undue burden” for the majority of women seeking abortion services.
In her opening statement, attorney Jan Soifer, who is representing the abortion providers, argued that the construction requirements implemented through the ASC provision do not increase safety standards. She said that they would instead “expose women to greater health risks” because the provision would reduce both the number and geographical distribution of abortion clinics.
Soifer said that the ASC provision would leave almost 1 million Texas women of reproductive age at least 150 miles away from an abortion clinic, and that such a lack of access to abortion services could lead to an increase in self-induced abortions.
State attorneys argued Monday that a federal appeals court had already held that driving 150 miles to an abortion provider is not an undue burden. Deputy Attorney General Jimmy Blacklock said during his opening statement that the law should be upheld because the Legislature had not been “motivated by an unconstitutional motive” when it passed the bill last summer.
With a majority of Texas women living within a three-hour drive of an abortion facility come September, Blacklock also indicated that abortion providers’ legal actions were motivated by their concerns of how the law would affect their businesses.
“The record will not show that they can’t comply with the law but that they won’t,” he said.
Witnesses who testified before U.S. District Judge Lee Yeakel on Monday included Illinois architect George Johannes, who has served as a consultant in the construction of several abortion facilities in other states.
Johaness estimated that construction costs to retrofit the shuttered Reproductive Services Clinic in El Paso, the largest facility Johannes studied, could reach $1.6 million in meeting ASC requirements. He said the costs are higher for smaller facilities like the Whole Woman’s Health clinic in Austin, which closed its doors last week. Johannes estimated that conversion at $2.4 million.
State attorneys challenged the figures he presented because they were based on construction costs in other states, but Johaness said the costs had been adjusted for Texas.
Attorneys for the abortion providers also brought in academics and medical experts who testified about the demand for abortion in rural areas and the challenges low-income women face in attempting to obtain an abortion, including transportation costs. To refute the state's claims that abortion is riskier than providers acknowledge, other witnesses detailed figures to support that abortion mortality is drastically lower than maternal mortality.
Dr. Elizabeth Raymond, and OBGYN and senior medical associate at the Gynuity Health Projects, said data shows that the mortality rate associated with childbirth in Texas is 100 times the death rate associated with abortions.
The trial also touched on a request by abortion providers to exempt the Whole Woman’s Health McAllen clinic and Reproductive Services clinic in El Paso from a provision that requires doctors who perform abortions to obtain admitting privileges at hospitals within 30 miles of an abortion clinic.
The two clinics’ closures have been blamed on the provision after physicians were unable to obtain admitting privileges at nearby hospitals, leaving women who live south and west of San Antonio without a nearby abortion facility.
The state argued that women in El Paso could make the short trip to New Mexico to obtain the procedure and that women in the Rio Grande Valley were within reasonable driving distance to San Antonio.
The proceedings continue Tuesday morning with two more witnesses brought forth by the abortion providers’ attorneys. State attorneys will bring up their own witnesses to testify Wednesday afternoon, with the trial scheduled to last through Thursday.
Texas abortion providers’ next attempt to block strict abortion regulations that the Republican-led Legislature passed last year begins Monday in Austin, where a federal court is considering whether to block a provision of the law that could shutter all but a handful of abortion clinics.
The lawsuit, brought by the Center for Reproductive Rights on behalf of several abortion providers, seeks to prevent the state from requiring abortion facilities to meet the same regulations as ambulatory surgical centers, or ASCs. Abortion providers are asking the U.S. District Court for the Western District of Texas to block the provision, which they say will leave fewer than 10 facilities operating in the state — and no abortion providers south or west of San Antonio.
The clinics argue that the measure will create an unconstitutional barrier for women seeking access to abortion. State attorneys contend that there isn’t enough evidence that the rules create an “undue burden” for the majority of women seeking abortion services.
The ASC requirement takes effect Sept. 1 and mandates that clinics have specific room and doorway sizes, along with locker rooms and infrastructure such as pipelines for general anesthesia. It’s the last remaining provision to be implemented after the passage last year of House Bill 2, which began to take effect in October.
Opponents of the regulations argue that the ASC provision could nearly eliminate access to abortion services, particularly among low-income women living in rural areas. Only six existing abortion facilities in Texas, all in major cities, meet the ASC requirements.
Planned Parenthood is scheduled to open a new ASC in Dallas before September, and it is raising funds for another in San Antonio. The organization needs another $1.5 million for the San Antonio facility. But even with the new facilities, some women who live west or south of San Antonio would have to travel more than 1,000 miles to obtain an abortion after the ASC requirements take effect.
Legislators who backed the regulations and abortion opponents have said that the regulations are intended to protect Texas women and ensure the safety of abortion procedures. Melissa Conway, spokeswoman for Texas Right to Life, said the organization expects the court to uphold the provision, which she said represents "best practice standards of care."
"Abortionists continue to promote and justify the right to perform the life-ending procedure of abortion while forcing women to be subjected to substandard and potentially dangerous clinic environments," Conway said.
The Texas attorney general's office, led by Republican gubernatorial candidate Greg Abbott, declined to comment on the lawsuit and referred The Texas Tribune to its court filings in which state attorneys argue that abortions are more dangerous than the providers admit and that the ASC requirements would improve care and safety. They dismiss abortion providers' claims about the "alleged burdens of travel and cost” that could result from closures of clinics across the state.
"Receiving optimal care is not an undue burden. It would be safer for patients to drive further to receive an abortion at a surgical facility with a credentialed and privileged physician than to seek an abortion at a nearby, substandard clinic,” the state’s brief said.
Abortion providers say regulations that have been implemented since HB 2 took effect have already caused about a dozen abortion clinics to close. The provisions include a ban on abortions after 20 weeks of gestation and a requirement that all doctors who perform abortion procedures have admitting privileges at a hospital within 30 miles of an abortion clinic. The law also requires doctors to follow the U.S. Food and Drug Administration's protocol for drug-induced abortions, rather than evidence-based protocol.
As of April, there were 24 active abortion clinics in Texas, down from 40 before the bill took effect. Several more clinics have shuttered since then, and more are expected to close when the ASC requirements provision goes into effect.
Abortion providers previously unsuccessfully challenged the law’s admitting privileges provision. In March, a three-judge panel decided that abortion providers had not proven that the requirement for doctors to have admitting privileges at nearby hospitals would create an “undue burden."
The panel’s ruling overturned a decision by U.S. District Judge Lee Yeakel that had temporarily blocked the law last October. Yeakel will preside over this week’s trial, which is scheduled to last through Thursday.
Lawyers for the abortion providers said it should be easier to prove that the ASC requirement imposes an undue burden because the effect of the provision will be immediately felt when most of the remaining clinics shutter.
“This is a little different, because we’re talking about building facilities that cost millions of dollars. Either they already exist, or they’re not going to magically appear on Sept. 1,” said Esha Bhandari, an attorney representing the abortion providers.
In addition to challenging the ASC requirements provision, the current lawsuit asks the court to suspend the admitting privileges requirement for two clinics that have shut down after being unable to obtain them: Whole Woman’s Health in McAllen and Reproductive Services in El Paso.
Regardless of the court’s ruling on an exemption from the admitting privileges rule for the El Paso and McAllen clinics, representatives for the clinics have said they would not meet the ASC requirement come September if the court doesn’t block that provision. So they would likely be forced to close anyway.
The law regulating abortions garnered national attention last summer during an hours-long filibuster by state Sen. Wendy Davis, who is now the Democratic gubernatorial candidate. The move temporarily stalled the bill, but the Legislature passed about a month later. Abortion providers sued the state soon after, challenging the constitutionality of the law.
It's unlikely that today's trial will be the last in legal saga. The losing party in this week's trial will likely appeal the court's decision. Yeakel has previously speculated that at least one of the cases against strict abortion regulations could reach the U.S. Supreme Court.
This story was produced 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.
Disclosure: Planned Parenthood was a corporate sponsor of The Texas Tribune in 2011. A complete list of Texas Tribune donors and sponsors can be viewed here.
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