It is now more difficult for those who want an abortion in Texas to obtain the safe, legal care that was available yesterday as HB 2 will finally go into effect in the state. The new anti-choice omnibus bill took two special sessions before it could pass on a simple majority vote, but despite the best efforts of reproductive rights advocates and a ruling yesterday from a federal judge that parts of it are unconstitutional, most of the law will be enforced starting today.
With HB 2 in effect, those who try to obtain an abortion after 22 weeks gestation will no longer be able to get the procedure unless the fetus has “severe fetal indication” or the abortion is being performed “to avert the woman’s death or a serious risk of substantial and irreversible physical impairment of a major bodily function.” For the roughly one percent of abortions that occur this late in pregnancy, the rule is particularly devastating, as it takes the medical decision out of their hands at a time in the pregnancy in which abortion is often a last resort, either because of a genetic issue which may not always fall under “severe” or because the patient has been a victim of sexual assault and was unable financially to obtain an abortion prior or may not have been able, for some other reason, to access early care.
That the 20 week abortion ban would go into effect was never in doubt. But a coalition of providers, legal advocates and the ACLU in Texas banded together to file a lawsuit against two other portions of the bill that would even more severely restrict access to those who wanted an abortion in Texas: a provision around how medication abortion could be administered, and a requirement that all abortion doctors have admitting privileges to a local hospital within 30 miles. Like all admitting privilege requirements for abortion clinics, the rule is meant to force clinics to close when hospitals will not offer privileges to the clinic physicians.
Also, like all admitting privileges requirements, the rule was struck down as unconstitutional. In a ruling on Monday, Texas U.S. District Judge Lee Yeakel declared that the requirement would place an undue burden on abortion access and did not actually add to patient safety. As a result, he blocked the provision from going into effect.
That particular news, for now, is a clear victory for Texans who may need abortion care. Without the court’s intervention, it was expected that all but potentially five of Texas’s clinics would be forced to close, leaving a vast majority of the state without any providers for hundreds of miles. Of more concern is the state Attorney General Greg Abbott’s promise that he will appeal the decision to the 5th Circuit, a notoriously anti-abortion and anti-women’s rights district when it comes to legal issues.
Abbott is running for Texas governor in 2014.
Less of an immediate victory was a mixed results decision on the state’s new rule that abortion medication can only be provided as described by a 10-year-old FDA protocol. Over the years as medication abortion has been found to be extremely safe, doctors have reduced the amount of the drug required to just one third, as well as introduced new means of providing it, such as in Iowa, where it previously could be offered after a video appointment with a doctor in a different location.
Judge Yeakel ruled that in the case of how to provide the medication for a medical abortion, a doctor must follow FDA protocol rather than medical best practices — except in cases where a patient’s health is in danger, in which case then the provider can use best practices. It is a puzzling application of the law. After all, if it is always better for a medication to be provided via FDA protocol, as the judge appears to be ruling, why is it not still best in a case where someone’s health is in danger?
His answer, according to Slate’s Dahlia Lithwick, is that using the old, costly protocol doesn’t make an undue burden, so it can stay in effect, something Lithwick calls absurd. “A law that offers women substandard care, in the interest of protecting their life or their health, makes no more sense today than it did yesterday.”
But although much of the anti-choice omnibus will still go into effect starting today, having the admitting privileges blocked, at least for now, represents a major victory to a state that was in danger of losing nearly every clinic within its borders. As such, it follows the path of Alabama, Wisconsin, Mississippi and North Dakota in a perfect record when it comes to courts agreeing that admitting privileges serve no purpose when it comes to patient safety and exist only to try to shut abortion providers down.
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