Texas regulation a preview of abortion law effects

At the Whole Women’s Health clinic on the outskirts of San Antonio, the abortion rights movement is in headlong retreat. New regulations have pruned the number of abortion clinics in Texas by more than half, leaving only those in big urban centers like this one, which is now the nearest clinic serving the entire Rio Grande Valley.

In that region, one of the country’s poorest, abortions have dropped by 21 percent since the new restrictions went into effect last fall, according to one recent study, compared with a 13 percent decline statewide.

Staff members at Whole Women’s Health, which had to shut down a clinic near the Mexico border in McAllen, say there’s been a notable uptick in women making the 200-plus-mile trek for services. The staff consult with women sometimes for weeks at a time before the women are able to make the trip.

“It used to be your area; ZIP codes became familiar,” said Marva Sadler, the clinical services director here. “Now we’re just seeing women from all over.”

Texas offers a preview of what may be coming next month in Louisiana, where nearly identical new rules will require that abortion doctors maintain so-called admitting privileges at a nearby hospital. That rule will likely shut down all but one or two of the state’s five abortion clinics, leaving none farther south than Shreveport, more than 300 miles from New Orleans.

All across the Deep South, abortion opponents in state legislatures have succeeded in imposing new rules along the same lines, setting off a multiple-front legal battle that Louisiana is now poised to join.

Attorneys for abortion clinics in Metairie, Shreveport and Bossier City and two physicians filed a lawsuit Friday in U.S. District Court in Baton Rouge to stop the new law from going into effect.

“If the statute is enforced on its effective date of September 1, 2014, it is not at all clear that any doctor currently providing abortions at a clinic in Louisiana will be able to continue providing those services, thereby eliminating access to legal abortion in Louisiana,” according to the suit.

The Texas case suggests abortion rights proponents in Louisiana may have a difficult time in the courts, although federal judges have offered conflicting opinions on the central legal question: whether these new rules pose an “undue burden” on a woman’s right to an abortion, as spelled out by the Supreme Court in Roe v. Wade and subsequent cases.

Comparison to gun rights

This month, a federal judge in Alabama ruled in favor of Planned Parenthood, the abortion provider, in a case that closely parallels the situation in Louisiana.

The Alabama plaintiffs testified that new rules on admitting privileges would force three of the state’s five clinics to close. In a 172-page opinion, U.S. District Judge Myron Thompson ruled that the state does have a “legitimate interest” in “protecting the health of the woman and the life of the fetus.” But he said that any new restrictions aimed at doing so could not go too far in hampering a woman’s right to choose an abortion in the early phases of pregnancy.

Thompson — who was appointed by President Jimmy Carter, a Democrat — compared abortion rights to gun rights, asking what would happen if there were only five places to buy firearms in Alabama and new restrictions closed three of them. “The defenders of this law would be called upon to do a heck of a lot of explaining — and rightly so in the face of an effect so severe,” Thompson wrote.

Still, the Alabama decision will not technically constrain the way a judge might rule in Louisiana. And a panel of judges of the 5th U.S. Court of Appeals, which hears challenges from district court judges’ decisions in Louisiana, Texas and Mississippi, has already decided that the new restrictions in Texas do pass constitutional muster.

Just as in the Alabama case, abortion providers in Texas argued the new restrictions would shut down many of the state’s clinics without actually improving the quality of care, the ostensible rationale for the new laws. They brought in doctors who argued the new rules are superfluous because abortions rarely lead to complications requiring hospital care, a position backed by the American College of Obstetricians and Gynecologists and the American Medical Association.

The owner of Whole Women’s Health told the trial judge that her clinics already had trouble finding doctors because of the uncertainty created by the new abortion rules, and she said many hospitals are reluctant to extend the doctors admitting privileges because of the political controversy.

The state countered with studies showing that many dangerous medical complications result from miscommunications between different doctors when patients are transferred from one to another. Doctors testifying in favor of the new restrictions cited statistics that show many hospitals don’t have specialists such as gynecologists on call for emergency consultations. And they argued that requiring admitting privileges would act as another layer of screening to weed out unqualified abortion providers.

They pointed to Kermit Gosnell, a Philadelphia abortion provider who was sentenced to life in prison last year for using a pair of scissors to kill a baby that was born alive.

A rational connection

A trial judge in Austin sided with the abortion rights advocates, but a three-judge panel for the 5th Circuit, one of the country’s most conservative federal appeals courts, unanimously reversed that decision in March. In an opinion written by Judge Edith Jones — an appointee of Republican President Ronald Reagan — the appeals judges ruled that Texas needed only to show a rational connection between the new rules and their stated purpose, not definitively to prove that the new restrictions would improve women’s health.

And they seemed unimpressed with the distances women might have to travel to obtain abortions. “Of the 254 counties in Texas, only 13 had abortion facilities before (the law) was to take effect,” the 5th Circuit judges wrote, pointing out that the new law exempts women from a required 24-hour waiting period if they have to travel more than 100 miles. They also referred to a Pennsylvania ruling that found no undue burden existed even though women in 62 of that state’s 67 counties would have to travel at least an hour, and sometimes more than three hours, to get to the nearest clinic offering abortions.

A similar case in Mississippi recently introduced a new twist to the debate. The new rules on admitting privileges there would have shut down Mississippi’s only abortion clinic, making it harder for the state to argue that women would still have a real choice.

When that case got to the 5th Circuit, the state’s lawyers argued that women in Mississippi could still travel to Tennessee or Louisiana for an abortion, though presumably that could soon change, given how quickly the new regulations have spread.

Here, a different 5th Circuit panel decided 2-to-1 that lawmakers had gone too far. “A state cannot lean on its sovereign neighbors to provide protection of its citizens’ federal constitutional rights,” Judge E. Grady Jolly — a Reagan appointee — wrote, ruling that Mississippi’s law “effectively extinguishes” a woman’s right to choose “within Mississippi’s borders.”

Of course, it remains to be seen how the courts will view Louisiana’s regulations. And eventually the whole issue is likely to reach the U.S. Supreme Court, especially if different federal appeals courts end up disagreeing on exactly where the “undue burden” line is.

In the meantime, abortion providers continue to retrench, doing whatever is necessary to provide services within the shifting boundaries of the law.

More Texas rules

In Texas, things are about to get more onerous even where clinics continue to operate. Going further than most states, Texas has a new rule beginning Sept. 1 that all so-called surgical abortions, rather than those induced using a combination of drugs, will have to be performed in an ambulatory surgical center instead of a regular clinic setting.

Sadler, at the Whole Women’s Health clinic in San Antonio, said the differences between the two settings are stark and the new rules are only a more subtle tactic aimed at stopping abortions from happening.

The clinic’s rooms are small, softly lit and named for famous women. In one of them, Amelia Earhart’s portrait hangs on a wall next to a red model airplane. The recovery room is lined with leather recliners where women use heated blankets for cramps and drink specially brewed tea.

The surgical center across the parking lot has two big operating rooms with black surgical tables under big surgical lamps. To comply with operating room regulations, women must be wheeled out of them wearing surgical robes into a recovery room where they lie on gurneys.

“You’re telling me I’m here for a minor procedure, and then I see all of this,” Sadler said. “And I’m petrified.”