On First Day of Texas Abortion Law Trial, State Asserts Interest in Protecting ‘Unborn’

Opponents of Texas’ new omnibus anti-choice law went to court Monday morning to ask a federal judge to block two tenets of HB 2 that require abortion providers to secure admitting privileges at nearby hospitals and restrict the prescription of a medication abortion regimen.

Judge Lee Yeakel advised the crowded courtroom that “at the end of the day,” the issues presented in the lawsuit would likely be decided by the Fifth Circuit Court of Appeals in New Orleans or by the Supreme Court.

“This court’s job is not to rule on whether women should be allowed abortions,” Yeakel said, adding that his job is not to rule on his “personal views,” but to rule on the constitutionality of the law. “I want to hear about the statute, and whether the statute passes muster or not.”

The plaintiffs in the case include the American Civil Liberties Union, the Center for Reproductive Rights, Planned Parenthood of Texas, and other abortion providers, who argued in court documents, and through witness testimony Monday, that HB 2 would severely limit the ability of doctors to provide legal abortion in the state by unnecessarily requiring them to obtain hospital admitting privileges and by restricting them to using the 13-year-old Food and Drug Administration (FDA) label protocol for medication abortions, a regimen of Mifeprex or mifepristone, and misoprostol, also known as Cytotec.

Critics of HB 2, including researchers from the Texas Policy Evaluation Project at the University of Texas, say that if Judge Yeakel does not rule in their favor, the hospital admitting privileges provision of the law will force about one-third of existing abortion providers to close their doors on October 29 when that provision goes into effect.

The differences between the plaintiffs and the attorneys for the State of Texas were stark from the very beginning of proceedings Monday morning: State counsel consisted of eight men and one woman, while plaintiffs’ counsel consisted of eight women and one man. The state declined to call witnesses, instead saying it would rely on written testimony and evidence, while the plaintiffs plan to call up to five witnesses, including abortion providers, public health researchers, and professionals.

As proceedings began, Texas Solicitor General Jonathan Mitchell said that not only does the state contend that HB 2’s provisions are necessary to protect the health of Texas women, but the state has a vested interest in “protecting the life of the unborn child,” and therefore has the right to impose “inconveniences on women seeking abortion in hopes that it may lead women considering abortion to opt for childbirth instead.”

If HB 2 does not “impose on the health of the patient,” said Mitchell, the law would stand challenge. But the plaintiffs’ first witness, Dr. Paul Fine, an abortion provider and medical director at Planned Parenthood Gulf Coast, said that the law would indeed do just that.

“I believe that both of these provisions will harm women, harm Texas women,” testified Fine. He said the law’s requirement that the mifepristone/misoprostol regimen laid out by the FDA in 2000 has been updated with “evidence-based” protocols that are safer and more effective than those devised in the regimen’s original studies. Of the 1.75 million women who have used the regimen since 2000, said Fine, only five have died, and those before evidence-based protocols came into practice around 2006. He testified that abortion providers would be reluctant, if not unable, to prescribe medication abortions as a result of the law.

Fine added that HB 2 is “turning back the clock two decades,” and “does harm women because it takes away not only a choice but a safer method of abortion,” specifically for women for whom certain gynecological conditions, like uterine fibroid tumors, put them at risk for more complications if they were to undergo surgical abortion.

The plaintiffs also called an emergency physician who practices in Houston, Dr. Jennifer Carnell, who testified that in her experience, admitting privileges would not guarantee a higher standard of care for patients who present in an emergency room with complications from abortion. In nine years on the job, she said she had treated an estimated ten patients for complications from medication abortions. But every shift, she said, she sees women who present with miscarriages, the symptoms of which are almost identical to abortion complications.

“These are things that I see every day, people present with miscarriages,” said Carnell, who testified that emergency room physicians, in her experience, did not need to speak with an abortion provider to treat complications from abortion procedures. “The symptoms are something I feel confident treating as an emergency physician.”

The final witness of the day, University of Texas demographer Dr. Joseph Potter, testified that his Texas Policy Evaluation Project research shows the negative impact of HB 2 on abortion access, estimating that more than 22,000 women would be unable to access abortion as a result of the law’s challenged provisions. And if clinics are forced to close because their doctors cannot find admitting privileges, he said it is very difficult for them to reopen.

“The critical part, if a provider stops providing services, that clinic stops receiving money, but it does not stop receiving bills for the rent, and it has to continue to pay staff or let staff go,” testified Potter. According to his research speaking to reproductive health leaders in Texas, he said, “it is hard to recruit doctors to be able to do abortions.”

Potter said his research shows that some abortion providers would have to significantly increase their capacity in order to take on the geographic overflow patients who would be unable to go to clinics that no longer have abortion providers with admitting privileges. In Nueces County, for example, a provider would have to increase capacity by 182 percent, while providers in Dallas would need to see a 51 percent increase in patients.

But state attorneys challenged Potter’s research, saying that until the law goes into effect, all he is providing is speculation.

“It is not possible to prove these kinds of claims until the law is allowed to come into effect,” said Solicitor General Mitchell.

The trial continues Tuesday, when the plaintiffs are expected to call two representatives from Whole Woman’s Health, a group of abortion providers with five locations in Texas, including an ambulatory surgical center in San Antonio.

Correction: A version of this article incorrectly quoted Texas Solicitor General Jonathan Mitchell as saying that the state has the right to impose “inconveniences on women seeking abortion in hopes that it may lead women considering abortion to consider childbirth instead,” when in fact he said “it may lead women considering abortion to opt for childbirth instead.” We regret the error.

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  • Jennifer PM

    Thank you so much for the updates!