Abortion providers challenging Texas’ new regulations as medically unnecessary are mistaken about the law’s intent, a state lawyer said as a two-day federal court trial on the law’s future began Monday morning.
Passed last summer during two contentious special sessions of the Legislature, House Bill 2 was not enacted solely to protect the health of women seeking an abortion, said state Solicitor General Jonathan Mitchell.
The law “also serves to advance the state’s interest in protecting fetal life,” Mitchell told U.S. Judge Lee Yeakel in Austin.
The U.S. Supreme Court has recognized that states can adopt stricter regulations in the hope that women “will opt for childbirth” as long as the law does not place a substantial burden halting access to abortion, Mitchell said.
Mitchell also said the abortion providers seeking to overturn the law offer conjecture, but no solid proof, that one-third of clinics will be forced to close if the law takes effect, as planned, on Oct. 29.
“That is not possible to prove until the law takes effect,” he said.
Abortion providers are asking Yeakel to block enforcement of two provisions of the law:
- Requiring abortion doctors to gain admitting privileges in a hospital within 30 miles of the clinic.
- Beefing up regulations on the dispensing of abortion-inducing drugs.
Abortion providers argued that the tighter regulations were not medically necessary but were instead intended to limit access to abortion by forcing at least 13 clinics to shut down.
Yeakel began the trial by noting the strong feelings surrounding any law addressing abortion.
“The abortion issue is a big issue in this country. It is a divisive issue,” he said. “We don’t need to hear about the position of the parties on abortion. I want to hear about the statute and whether that statute passes muster or not.”
Yeakel also said he recognized that his ruling will not ultimately decide the matter because the losing side will appeal to the 5th U.S. Circuit Court of Appeals and perhaps the U.S. Supreme Court.
With that in mind, Yeakel said he would dispense with the usual order of business, a hearing on a preliminary injunction that would be followed by an appeal while both sides prepared for a trial on the merits.
Instead, Yeakel moved directly to the merits trial to speed the issue toward a resolution.
Abortion providers plan to call five witnesses. Lawyers for Attorney General Greg Abbott, whose office is defending the law, plan to call no witnesses but will rely on affidavits from doctors and other witnesses.
Monday’s first witness was Dr. Paul Fine, medical director of a Planned Parenthood clinic in Houston.
HB 2, Fine testified, would hurt women’s health by forcing doctors to use outdated protocols on dispensing abortion-inducing drugs and force women to seek risky alternatives after abortion clinics are forced to close.
“It’s turning back the clock two decades,” Fine said. “In my opinion it does harm women because it takes away not only a choice but a safer method” of abortion.
The lawsuit was filed by Planned Parenthood, the American Civil Liberties Union and the Center for Reproductive Rights, as well as 11 abortion providers and three doctors who perform abortions.
The organizations did not challenge the law’s ban on abortions after the 20th week post-fertilization — four weeks earlier than currently allowed — except when the woman’s life is endangered or in cases of “severe fetal abnormality.” The ban will take effect Oct. 29.
The lawsuit also did not challenge the law’s requirement that all abortion clinics meet the same standards as ambulatory surgical centers by Sept. 1, 2014. Abortion providers plan to file a separate legal challenge, most likely after the state finalizes its surgical-center rules, arguing that the provision will leave only six abortion clinics open in Texas.
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