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From Health Law Daily, March 31, 2014

Injunction reversed, Texas restrictions on abortions upheld

By Michelle L. Oxman, JD, LLM

A federal appeals court has reversed the injunction against enforcement of the Texas statute that requires physicians who perform abortions at clinics to have admitting privileges at a hospital within 30 miles of the clinic. Rejecting the trial court’s view of the evidence, the court found that the conclusion that clinics would be likely to close was not supported and that the restriction did not pose a substantial burden on the rights of Texas women to choose abortion. The court also reversed the trial court’s ruling invalidating the law that required medication abortions to comply with an FDA protocol that limited its use to the first 49 days of pregnancy. However, the appeals court left the injunction in place to protect physicians who applied for admitting privileges before the 100-day grace period expired because Texas law allows hospitals 170 days to act on applications (Planned Parenthood v Abbott, March 27, 2014, Jones, E).

The trial court’s injunction. In July 2013, the Texas legislature passed HB 2, which: (1) required physicians who perform abortions at clinics to have admitting privileges at a hospital within 30 miles of the clinic; and (2) required abortions induced by medication to comply with the FDA protocol limiting them to the first 49 days after the pregnant woman’s last menstrual period (LMP). The trial court ruled that the admitting privileges requirement of the statute was unconstitutional on its face, meaning that there were no circumstances in which its application would be constitutional.

With respect to medication abortions, the trial court ruled that the requirement to adhere to the FDA protocol, in particular, the 49-day limit, imposed a substantial obstacle to a woman’s choice of abortion between days 50 and day 63 post-LMP because physicians regularly perform safe medication abortions during those days. The court also heard evidence that the medication abortion was safer than surgical abortion for women with certain medical conditions, including obesity and certain conditions of the uterus. The trial court held that the limit could not be applied when the pregnant woman’s physician determined that the medication abortion was necessary to preserve the life or health of the pregnant woman.

Standard of review. The Court of Appeals determined that consideration of the claim that the admitting privileges statute was facially unconstitutional was inappropriate because it would first be necessary to establish that there was no circumstance under which the statute could be applied constitutionally and because courts should decide constitutional cases on the narrowest grounds possible. It also relied on the Supreme Court decision in Gonzalez v Planned Parenthood, which upheld the ban on “partial birth abortions.” The court of appeals reasoned that Gonzalez held that abortion restrictions may be upheld if the legislature has a rational basis to support them and that the state’s interest in protecting fetal life may support restrictions that are effective before viability, the point when the fetus could survive outside the womb.

Defining “undue burden.” The court of appeals ruled that the trial court erred when it found that the admitting privileges requirement posed an undue burden on a large fraction of women who sought abortions in Texas. It rejected the testimony of both a sociologist and abortion clinic operators that specific clinics, and one-third of all Texas clinics, would be forced to close. One operator of clinics testified that the physicians who worked at her clinics would not obtain privileges because of their advanced age. The court also found unhelpful the testimony of clinic operators that it was extremely difficult to recruit physicians for the clinics because many of them had contractual commitments to their primary practices that prohibited moonlighting or the performance of abortions at other facilities in particular. The court found that these obstacles did not arise from HB 2.

Similarly, the court found no value in testimony that physicians declined to join the clinic because of the restrictions posed by HB2 and their concerns that they would not be able to meet the requirement to perform a minimum number of procedures in order to maintain privileges and that the Catholic hospitals would deny them privileges if they performed abortions at the clinic.

The court found that even if clinics did close, the addition of 150 miles to the distance women would have to travel to obtain abortions was not an undue burden, and it determined that the law had neither a purpose nor an effect of hindering women’s access to abortion. It also re-weighed the expert testimony about the need for admitting privileges to assure continuity of care and the extent to which emergency departments were equipped to handle patients who presented after an abortion had gone wrong.

Remaining injunction provisions. The court distinguished the recent Seventh Circuit ruling in Planned Parenthood v Van Hollen, which upheld an injunction against Wisconsin’s admitting privileges requirement. The Wisconsin law had no grace period for physicians to come into compliance. It was enacted on a Friday and became effective the following Monday. The Seventh Circuit could find that the impossibility for physicians to come into compliance in Wisconsin belied any purpose to protect women’s health. However, the Texas law allowed physicians 100 days to comply. Texas law also allowed hospitals 170 days to grant or deny an application for privileges. The court upheld the injunction to the extent that it protected physicians who had applied for privileges within the 100-day grace period but had not yet had a response from the hospital.

Medication abortion protocol. The appeals court rejected the trial court’s determination that the injunction was necessary to protect women’s right to abortion when a doctor found that the medical abortion was necessary to preserve life or health because the trial court did not specifically find that the lack of an exception to protect the woman’s health did not invalidate the law.

The case number is: 13-51008.

Attorneys: Roger James George, Jr. (George Brothers Kincaid & Horton, LLP) for Planned Parenthood of Greater Tex. Surgical Health Services, Planned Parenthood Center for Choice, Planned Parenthood Sexual Healthcare Services, Whole Woman's Health and Austin Women's Health Center. Jonathan F. Mitchell, Office of the Attorney General, for Attorney General Gregory Abbott.

Companies: Planned Parenthood of Greater Tex. Surgical Health Services; Planned Parenthood Center for Choice; Planned Parenthood Sexual Healthcare Services; Whole Woman's Health; Austin Women's Health Center

MainStory: TopStory ComplianceNews DrugBiologicalNews TexasNews LouisianaNews MississippiNews

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