State Seeks Emergency Stay Over Abortion Ruling

The Politics of Prevention

The Politics of Prevention is an occasional series on the effects of state policy on women's health services.

 More in this series 

Updated Oct. 29, 9:55 a.m.: 

The Texas attorney general's office is seeking an emergency stay, asking the 5th U.S. Circuit Court of Appeals to reverse U.S. District Judge Lee Yeakel’s ruling against abortion regulations in House Bill 2. 

Beginning Tuesday, abortion providers would have been required to obtain hospital admitting privileges within 30 miles of the abortion facility and follow federal standards for the administration of abortion-inducing drugs. Yeakel ruled that the hospital privileges requirement was unconstitutional because it created an undue burden on women without serving a rational purpose. He also said drug-induced abortions could be performed following a common evidence-based regimen if the physician believed it was safer for the patient.

In its request, the state says the district court took an “extraordinary step” by ruling that the provisions caused an undue burden on women seeking abortion, as 90 percent of patients would still be able to secure an abortion within 100 miles of their residence. The state calls the move “so aggressive that it ignores those concessions and sweeps more broadly than even the plaintiffs were willing to argue.” It calls for an emergency stay by Tuesday night. 

The state also asks that the 5th Circuit expedite the briefing schedule so a hearing can be held in January to reconsider the constitutionality of the provisions. 

Original story, Oct. 28: 

Less than 24 hours before new abortion regulations were set to take effect in Texas, U.S. District Judge Lee Yeakel on Monday blocked implementation of one provision challenged by abortion providers and partially blocked a second provision, ruling that they could place an undue burden on women and are therefore unconstitutional. 

In his opinion, Yeakel wrote that a provision of House Bill 2 that requires doctors performing abortions to have admitting privileges at a hospital within 30 miles of the abortion facility "places a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus and is thus an undue burden to her.”

He wrote that a second provision requiring women to follow a federally approved regimen for drug-induced abortion — as opposed to a more commonly used evidence-based regimen — would not generally place an undue burden on women seeking abortions. But he said it would be unconstitutional for the state to ban a woman from having such an abortion if it was safer for the woman in a physician's "appropriate medical judgment." Yeakel’s ruling allows a physician to use the evidence-based protocol for drug-induced abortions in certain situations that present a risk to the health and safety of the mother.

The state immediately appealed the court's ruling, meaning the case heads to the 5th U.S. Circuit Court of Appeals, which has recently upheld numerous laws that restrict abortion. “We appreciate the trial court’s attention in this matter," Lauren Bean, a spokeswoman for Texas Attorney General Greg Abbott, wrote in a statement. "As everyone — including the trial court judge — has acknowledged, this is a matter that will ultimately be resolved by the appellate courts or the U.S. Supreme Court.”

The plaintiffs, who represent the majority of abortion providers in Texas, including four Planned Parenthood affiliates, Whole Woman’s Health and other independent abortion providers, had asked the court for an injunction to block the implementation of the two provisions originally slated to take effect on Tuesday. 

"This decision will keep thousands of women safe and allows our Whole Woman's Health clinics to continue to provide compassionate, professional care to women in our communities," Amy Hagstrom Miller, chief executive, founder and president of Whole Woman's Health, said in a statement. She also expressed disappointment that Yeakel did not completely block the restrictions on drug-induced abortions, which she said "are not based on sound medical practice."

The plaintiffs argued that the hospital privileges and drug-induced abortion provisions are unconstitutional because they place an undue burden on women attempting to access the procedure. They said a third of abortion facilities in Texas would not have a physician with hospital admitting privileges if the law was upheld, and would likely close, causing 22,000 women to lose access to abortion. The plaintiffs also argued that the FDA regimen that women would be required to follow is outdated compared with a commonly used evidence-based regimen, which multiple national studies have shown is more effective, less costly and has fewer negative side effects, as it requires a lower dosage of medication.

The state’s attorneys countered the plaintiff's arguments, claiming that the law advances the state’s interest in protecting life and would not place an undue burden on women. They also argued that doctors should petition the FDA, not the state, if they believe that the agency’s protocols are outdated.

Two additional provisions in House Bill 2 remain unchallenged — a ban on abortions after 20 weeks of gestation, which will still take effect on Tuesday, and a requirement that clinics meet the same standards as ambulatory surgical centers beginning in September 2014. 

Shortly before the ruling, the Texas Alliance for Life sent out a press release saying the new provisions were needed to improve safety standards for women. It highlighted a state inspection report for the Whole Woman’s Health facility in Beaumont, which indicated that the facility had numerous violations as of Oct. 3, including rusty equipment and a six-inch hole in the flooring of a cabinet used to store sterilization materials.

"Whole Woman's Health and Planned Parenthood want the public to believe that abortion facilities are safe for women,” Joe Pojman, executive director of Texas Alliance for Life, said in a statement. "No woman should be exposed to such horrendous conditions. Women deserve better."

In September, a Texas Tribune review of state inspection records for 36 abortion clinics from the year preceding lawmakers’ approval of HB 2 turned up little evidence to suggest the facilities were putting patients in imminent danger. State auditors identified 19 regulatory violations that they said presented a risk to patient safety at six abortion clinics that are not ambulatory surgical centers in Texas. None was severe enough to warrant financial penalties, according to the Department of State Health Services, which deemed the facilities’ corrective action plans sufficient to protect patients.

After state Sen. Wendy Davis, D-Fort Worth, filibustered a bill with the same provisions as HB 2, Perry called state lawmakers back to pass the legislation in a second special session. Thousands of people from across the state and the nation rallied at the Capitol to show their opposition to and support of the strict abortion regulations. When Perry signed the bill into law in July, he said, “Today’s signing definitely builds upon our continued commitment to protecting life in the state of Texas.”

Since its passage, the impact of the provisions in HB 2 has continued to draw national attention. Thousands of people have submitted comments on the proposed rules to implement the law, according to the Department of State Health Services. Given the volume of the submissions, it’s currently unknown how many of those comments are in support of or opposition to the proposed rules.

The chief executives of four Planned Parenthood affiliates in Texas wrote in a letter submitted to the state on Thursday that the proposed rules “would do nothing to protect Texas women’s health, and in fact would jeopardize their health by forcing safe abortion providers to close down, making safe and regulated abortion services far less accessible.” According to the letter, no more than eight abortion facilities would remain open in Texas if the proposed rules took effect, depending on whether additional abortion providers were able to obtain hospital admitting privileges or open ambulatory surgical centers.

“Today’s decision has averted a catastrophic health crisis for women across the state of Texas,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement. “Politicians, not doctors, pushed for both of these unconstitutional restrictions — despite the best medical standards for women’s health care."

This story was produced with the support of the Dennis A. Hunt Fund for Health Journalism, a program of the USC Annenberg School of Journalism's California Endowment for Health Journalism Fellowships, and 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.