Protesters gathered at the Texas state capitol in Austin to show support for reproductive rights
in July of 2013, as the legislature considered HB2. Photo by Erich Schlegel/Getty Images
NEW ORLEANS — A federal
appeals court in New Orleans is reviewing whether 11 clinics that provide abortion in Texas must immediately close their doors
because they don’t comply with a state law requiring that they meet all the standards of an outpatient surgical center.
A three-judge panel heard arguments this morning for more than 90 minutes, first from the Texas solicitor general and then
from a lawyer with the Center for Reproductive Rights, representing many of the Texas clinics. The questions from the judges
centered mainly on what constitutes an “undue burden” when a woman is trying to get an abortion, and what fraction of Texas
women would be affected.
Advocates say that about 20 abortion clinics in Texas have
already closed in advance of the law; if the court rules in Texas’s favor, fewer than 10 clinics that provide abortion
would remain in a state with a population of 26 million.
Advocates say that about 20 abortion clinics in Texas have already closed in advance of the law; if the court rules
in Texas’s favor, fewer than 10 clinics that provide abortion would remain in a state with a population of 26 million.
sides agreed that if the 11 clinics close, women in the Rio Grande Valley would have to travel more than 200 miles to San
Antonio to get an abortion under the new law. But Jonathan Mitchell, the Texas solicitor general, said there was no good evidence
that women weren’t figuring out how to deal with that and no evidence that if the abortion rate in Texas had fallen, that
it was related to the law.
“An abortion law cannot be enjoined based on conjecture,” Mitchell said. Judge Jennifer Elrod questioned him about a clinic’s
survey of 20 patients presented
at the trial in August. An expert testifying for the clinics said one patient surveyed said she did not get an abortion
after the law, known as HB2, went into effect.
“He did not report she was unable to get it, he did not report she encountered an undue burden,” Mitchell answered. “She
could simply have changed her mind.”
Furthermore, patients in El Paso, where another clinic might close because it is not an ambulatory surgical center, could
just travel to New Mexico for an abortion, Mitchell added.
Stephanie Toti with the Center for Reproductive Rights argued on behalf of affected clinics such as Whole
Woman’s Health. She says lots of evidence was presented at the trial last month that women were facing numerous burdens
exercising their constitutional right to an abortion. For example, a San Antonio clinic had offered women in the Rio Grande
Valley who were seeking abortions free bus passes to help them travel north. But the patients told the clinic it wasn’t just
the distance and money, but the problems with child care, time off work, and explaining to family why they were going so far.
Toti said a promontora, a health outreach worker, testified at the trial that women were experiencing obstacles due to
the clinics closing in Rio Grande Valley. “She says she personally observed women turning to illegal means to get an abortion,”
Toti told the judges.
In a rebuttal, Mitchell called that testimony “vague” and says the promontora couldn’t give specific numbers of women doing
that and couldn’t provide evidence that those choices were related to the effects of HB2.
The three judges did not indicate when they would decide, but if the decision goes for state of Texas, the clinics would
probably close immediately. The judges could also decide that some of the most isolated clinics could remain open, while others
Federal district Judge Lee Yeakel ruled in August that the surgery center regulation had no health benefit and would place
numerous burdens on women seeking care, especially if they lived in the Rio Grande Valley and west Texas. Yeakel allowed the
non-complying clinics to remain open, but the state asked for an emergency motion to overrule that and close them. The three
judges did not indicate when they would decide.
Mitchell told the panel the state of Texas has a compelling interest in closing clinics that it deems unsafe, and that’s
why the state sought an emergency motion to stay Yeakel’s decision.
“If there is a Kermit Gosnell-type clinic in a state, and that’s the last clinic in the state, I think everyone could agree
that clinic could be shut down,” Mitchell said, referring to a notorious
abortion doctor convicted of murder in Philadelphia.
Outside the hearing, reproductive rights protesters carried signs.
Bethany van Kampen, a lawyer and board member of the New Orleans Abortion Fund, attended the hearing. She said it seemed
that the judges were asking very hard questions of Toti.
“It’s a bit discouraging,” she said. “It felt very targeted. I felt our line of questioning was harder and more difficult,
and I think we tried to do our best.”
Sandy Jones, an activist with Stop Patriarchy, traveled from Houston to attend. She said it seemed the judges had too narrow
of a focus.
“These are forces that are determined to criminalize every abortion, every woman and make it inaccessible to every woman,”
Jones said. “And birth control as we know is not far behind. This is a war on women; this is a state of emergency.”
Abortion opponents had also traveled from Austin and Fort Worth to listen.
“It’s hard to say how this will go,” said Emily Horne, a legislative associate for Texas Right to Life.
She said there was a need for Texas to seek this emergency hearing to shut down the non-complying clinics right away. “It
is a direct safety measure for the health and safety of Texas women, so we think that sooner is better to implement that,”
Horne said it was exciting to be there, and important for all states, not just Texas.
“Texas is definitely setting some precedents as far as what states are being allowed to pass, so there is a lot that does
hinge on this,” she added.
This story is part of a partnership that includes Houston Public Media, NPR and Kaiser Health News. Kaiser
is 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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appeals court considers Texas abortion clinic law HB2 appeared first on PBS