Part of Texas’ abor­tion law nul­li­fied Hos­pi­tal-ad­mit­ting re­quire­ment struck

The Washington Times Weekly - - National - BY CH­ERYL WETZSTEIN

A fed­eral judge Mon­day struck down a key part of Texas’ strict new abor­tion law that would have re­quired abor­tion providers to have hos­pi­tal-ad­mit­ting priv­i­leges, but he de­clined to block a new rule on abor­tion-in­duc­ing drugs.

The de­ci­sion was one of a string of court tests of new abor­tion re­stric­tions passed by state leg­is­la­tures around the coun­try, in one of the most con­certed chal­lenges to the sta­tus of le­gal abor­tion since Roe v. Wade.

Plain­tiffs ar­gued that the hos­pi­tal-ad­mit­ting rule would ef­fec­tively close about a third of the clin­ics in Texas and end abor­tion ser­vices en­tirely in the cities of Fort Worth, Har­lin­gen, Killeen, Lub­bock, McAllen and Waco. The rul­ing, which rep­re­sents a par­tial de­feat for both pro-choice and pro-life camps, will be ap­pealed.

Even with the de­ci­sion, how­ever, a sec­tion of Texas’ new abor­tion law that blocks most pro­ce­dures af­ter 20 weeks into a preg­nancy goes into ef­fect Tues­day. The 20-week abor­tion ban was not chal­lenged in court.

The Texas abor­tion statute was ap­proved by the Repub­li­can-dom­i­nated Leg­is­la­ture in Austin this sum­mer, but only af­ter a de­lay sparked by a lengthy fil­i­buster by Demo­cratic state Sen. Wendy Davis. Ms. Davis, who at­tracted na­tional at­ten­tion with her ac­tion, is now run­ning for gov­er­nor.

Texas Gov. Rick Perry said Mon­day’s fed­eral rul­ing “will not stop our on­go­ing ef­forts to pro­tect life and en­sure the women of our state aren’t ex­posed to any more of the abor­tion-mill horror sto­ries that have made head­lines re­cently. We will con­tinue fight­ing to im­ple­ment the laws passed by the duly elected of­fi­cials of our state, laws that re­flect the will and val­ues of Tex­ans.”

In his or­der, U.S. Dis­trict Judge Lee Yeakel in Austin said the sec­tion of new law re­quir­ing abor­tion providers to have lo­cal hos­pi­tal-ad­mit­ting priv­i­leges “is with­out a ra­tional ba­sis and places a sub­stan­tial ob­sta­cle in the path of a woman seek­ing an abor­tion of a non­vi­able fe­tus.”

His rul­ing joins other courts, in­clud­ing one in Mis­sis­sippi, in block­ing a re­quire­ment to have lo­cal ad­mit­ting priv­i­leges.

Law­mak­ers and pro-life groups say the priv­i­leges are es­sen­tial as women some­times need emer­gency hos­pi­tal­iza­tion dur­ing or af­ter an abor­tion, and the pa­tients need their doc­tors to be con­nected to the lo­cal health care sys­tem.

Pro-choice al­lies say abor­tion providers are of­ten not full-time staff and can­not meet the ad­mit­ting-priv­i­lege re­quire­ment; thus, the man­date re­quir­ing the priv­i­leges are “un­der­handed” ef­forts to close the clin­ics, said Nancy Northup, pres­i­dent of the Center for Re­pro­duc­tive Rights, whose lawyers are rep­re­sent­ing some of Texas abor­tion clin­ics in chal­leng­ing the law.

In his rul­ing, Judge Yeakel said the lack of ad­mit­ting priv­i­leges “is of no con­se­quence” when a pa­tient en­ters a hos­pi­tal emer­gency room, and is not nec­es­sary for com­mu­ni­ca­tion or time­li­ness of care. He struck it down as un­con­sti­tu­tional.

Texas At­tor­ney Gen­eral Greg Ab­bott’s of­fice said Mon­day it would ap­peal the rul­ing.

Re­gard­ing “med­i­ca­tion abor­tion,” how­ever, Judge Yeakel de­clined to block a new pro­vi­sion that re­quires Texas abor­tion providers to fol­low the Food and Drug Ad­min­is­tra­tion’s pro­to­col for dis­pens­ing mifepri­s­tone and miso­pros­tol.

FDA rules re­quire sev­eral vis­its, a doc­tor to ad­min­is­ter the sec­ond dose, and re­stricts use of the drugs to no more than 49 days past a woman’s last menstrual pe­riod. The new Texas law is in­tended to re­quire those safety fea­tures for women, ar­gued at­tor­neys for Mr. Ab­bott and other state of­fi­cials.

Planned Par­ent­hood and its al­lies coun­tered that off-la­bel use of mifepri­s­tone (also known as RU-486) is “the safest, most widely used and med­i­cally ap­pro­pri­ate use,” and that the process is safe even when used up to 63 days af­ter a woman’s last menstrual pe­riod.

Judge Yeakel, while agree­ing that the FDA pro­to­col rule was more bur­den­some than com­mon prac­tice, ruled that it was con­sti­tu­tional: “[T]he in­ci­den­tal ef­fect of mak­ing it more dif­fi­cult or more ex­pen­sive to pro­cure an abor­tion can­not be enough to in­val­i­date” a law, Judge Yeakel wrote, cit­ing the U.S. Supreme Court’s 1992 Casey de­ci­sion.

Mon­day’s rul­ing stemmed from a law­suit filed in Septem­ber by abor­tion clin­ics. Judge Yeakel heard three days of tes­ti­mony and ar­gu­ments about the abor­tion law last week in Austin.

Mean­while, on Tues­day, Texas plans to join sev­eral other states in ban­ning most abor­tions past 20 weeks ges­ta­tion due to a be­lief that fe­tuses can feel pain at that age. Some of th­ese “fe­tal-pain” laws are blocked by courts, but oth­ers have been al­lowed to go into ef­fect.

Another hotly con­tested sec­tion of the Texas law is not sched­uled to go into ef­fect un­til Septem­ber 2014. It would re­quire abor­tion clin­ics to meet the stan­dards of am­bu­la­tory sur­gi­cal fa­cil­i­ties.

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