Created on Tuesday, 29 October 2013 Written by CHRIS TOMLINSON, Associated Press
AUSTIN, Texas (AP) — A federal judge determined Monday that new Texas abortion restrictions place an unconstitutional burden on women seeking to end a pregnancy, a ruling that keeps open dozens of abortion clinics across the state while officials appeal.
The ruling by District Judge Lee Yeakel came one day before key parts of the law the Legislature approved in July were set to take effect. Lawyers for Planned Parenthood and other abortion providers argued in their lawsuit that a provision requiring abortion doctors to have admitting privileges at a hospital less than 30 miles away would have effectively shuttered about a third of the state's 38 clinics that perform abortions.
Texas Attorney General Greg Abbott, whose office argued the law protects women and the life of the fetus, immediately filed an appeal with the conservative 5th Circuit Court of Appeals in New Orleans.
"I have no doubt that this case is going all the way to the United States Supreme Court," Abbott said during stop in Brownsville, Texas, as part of his campaign to replace retiring Gov. Rick Perry.
Although several conservative states in recent months have approved broad abortion limits, the Texas ones were particularly divisive because of the number of clinics affected and the distance some women would have to travel to get an abortion.
Federal judges in Wisconsin, Kansas, Mississippi and Alabama also have found problems with state laws prohibiting doctors from conducting abortions if they don't have hospital admitting privileges.
All the other appeals — including the one from Mississippi, which like Texas is within the 5th Circuit — deal only with whether to lift a temporary injunction preventing the restriction from taking effect. The Texas appeal could be the first that directly addresses the question of whether the provision violates the Supreme Court's Roe v. Wade ruling that legalized abortion.
The admitting privileges provision "does not bear a rational relationship to the legitimate right of the state in preserving and promoting fetal life or a woman's health and, in any event, places a substantial obstacle in the path of a woman seeking an abortion," Yeakel wrote.
In another part of his ruling, Yeakel, who was appointed by President George W. Bush, partially blocked the provision requiring doctors to follow an 18-year-old U.S. Food and Drug Administration protocol. He found that the state could regulate how a doctor prescribes an abortion-inducing pill, but the law failed to allow for a doctor to adjust treatment in order to best protect the health of the woman taking it.
Abortion-rights supporters complained that requiring doctors to follow the FDA's original label for an abortion-inducing drug would deny women the benefit of recent advances in medical science.
Other portions of the law, known as House Bill 2, include a ban on abortions after 20 weeks and a requirement beginning in October 2014 that all abortions take place in a surgical facility. Neither of those sections was part of this lawsuit.
Amy Hagstrom Miller, president of Whole Woman's Health, said the judge did not go far enough.
"Nearly 40 percent of the women we serve at Whole Woman's Health choose medication abortion and now Texas is preventing these women from the advances in medical practice that other women across the United States will be able to access," she said.
The law requiring admitting privileges was the biggest obstacle facing abortion clinics in Texas, and the ruling gives them a temporary reprieve until new regulations go into effect next year.
Mississippi passed a similar law last year, which a federal judge also blocked pending a trial scheduled to begin in March. Mississippi's attorney general asked the 5th Circuit to lift the temporary injunction so the law could be enforced, but the judges have left it in place signaling they believe there is a legitimate constitutional question.
Unlike the Mississippi case, Yeakel's order is a final decision, setting the groundwork for the 5th Circuit to review the merits of the law, not just an injunction against it.
The proposed restrictions were among the toughest in the nation and gained notoriety when Democratic state Sen. Wendy Davis launched a nearly 13-hour filibuster against them in June. She is now the only Democrat in the race for Texas governor.
Davis said the ruling didn't surprise her.
"As a mother, I would rather see our tax dollars spent on improving our kid's schools than defending this law," she said in a statement.
During the trial, officials for one chain of abortion clinics testified that they've tried to obtain admitting privileges for their doctors at 32 hospitals, but so far only 15 accepted applications and none have announced a decision. Many hospitals with religious affiliations will not allow abortion doctors to work there, while others fear protests if they provide privileges. Many have requirements that doctors live within a certain radius of the facility, or perform a minimum number of surgeries a year that must be performed in a hospital.
Beth Shapiro, chairwoman of board of directors of Lubbock's Planned Parenthood Women's Health Center, said no hospital in Lubbock has granted privileges to the lone doctor from East Texas who flies in to do abortions when there are procedures scheduled. There is not incentive for hospitals to do so, she said.
"I don't see why local hospitals would give privileges to someone who's not going to admit patients," Shapiro said. "I don't see what the business and financial incentive would be."
AP correspondents Christopher Sherman in Brownsville and Betsy Blaney in Lubbock contributed to this report.