UPDATE: Fed judge: Texas abortion limits unconstitutionalOctober 28, 2013
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Abbott says abortion case going to Supreme Court
BROWNSVILLE, Texas (AP) — Texas Attorney General Greg Abbott says he sees the lawsuit over the state's new abortion law going to the U.S. Supreme Court.
Abbott spoke to reporters in Brownsville on Monday shortly after a federal judge ruled two provisions of the law at least partially unconstitutional.
Judge Lee Yeakel threw out a law that says abortion doctors must have admitting privileges at a hospital within 30 miles of the clinic. He allowed the state to regulate how an abortion-inducing drug is used, except in cases where the doctor believes off-label use is called for.
Abbott said his office will appeal Yeakel's decision to the 5th Circuit Court of Appeals.
Abbott was campaigning Monday for governor. His likely Democratic opponent gained national attention for filibustering the abortion law.
CHRIS TOMLINSON, Associated Press
AUSTIN, Texas (AP) — A federal judge has determined that new Texas abortion restrictions violate the U.S. Constitution, a ruling that keeps open — at least for now — dozens of abortion clinics that were set to halt operations Tuesday if key parts of the law had taken effect.
In a decision released Monday that the state is certain to appeal, District Judge Lee Yeakel wrote that the regulations requiring doctors to have admitting privileges at a nearby hospital creates an undue obstacle to women seeking an abortion.
"The admitting-privileges provision of House Bill 2 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 of a nonviable fetus and is thus an undue burden to her," he wrote.
While Yeakel found that the state could regulate how a doctor prescribes an abortion-inducing pill, he said the law did not allow for a doctor to adjust treatment taken in order to best protect the health of the woman taking it. Therefore he blocked the provision requiring doctors to follow U.S. Food and Drug Administration protocol for the pills in all instances.
"The medication abortion provision may not be enforced against any physician who determines, in appropriate medical judgment, to perform the medication-abortion using off-label protocol for the preservation of the life or health of the mother," wrote Yeakel, who was appointed by President George W. Bush.
Lawyers for Planned Parenthood and other abortion providers that brought the lawsuit had argued the requirement that doctors have admitting privileges at a hospital within 30 miles of the abortion clinic would force the closure of a third of the clinics in Texas. They also 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.
Attorneys for Planned Parenthood and other plaintiffs had asserted that unless Yeakel ruled in their favor, 13 of the state’s 36 licensed abortion clinics would have been forced to close on Tuesday because they could not meet the admitting privileges requirement.
Tarrant County, one of the 20th most populous counties in the country, would have been left without abortion services, according to the suit, since all three Fort Worth clinics would have had to eliminate abortion services. The affected clinics, said attorneys, are Planned Parenthood of Greater Texas Surgical Health Services, West Side Clinic Inc., and Whole Woman’s Health.
The restrictions would eliminate services in Harlingen, Killeen, Lubbock, McAllen, and Waco and force clinics in other cities to reduce the number of abortions they provide, said the suit. As many as 22,800 women would be unable to get abortions if the restrictions went into effect, said the plaintiffs.
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, celebrated the victory on admitting privileges but said the judge did not go far enough in overturning the requirement that doctors follow an 18-year-old protocol in prescribing medical abortions.
"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. "These restrictions are not based on sound medical practice."
The Texas attorney general's office had argued that the law protects women and the life of the fetus. Attorney General Greg Abbott was expected to file an emergency appeal of Yeakel's order to the 5th Circuit Court of Appeals in New Orleans.
"Today's decision will not stop our ongoing efforts to protect life and ensure the women of our state aren't exposed to any more of the abortion-mill horror stories that have made headlines recently," Republican Gov. Rick Perry said in a statement. "We will continue fighting to implement the laws passed by the duly-elected officials of our state, laws that reflect the will and values of Texans."
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. The law also bans abortions at 20 weeks of pregnancy and would require doctors to perform all abortions in surgical facilities beginning in October 2014.
The filibuster forced Gov. Rick Perry to call a second special legislative session for the Republican-controlled Legislature to pass the law. Davis is now running for governor on a women's rights platform. Since Perry is retiring, Abbott is Davis' likely Republican opponent, adding a political layer to the legal drama.
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 the 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 no 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. ...it's "more work and not going to increase patient load."
Hospitals are required to do yearly reviews on physicians to keep accreditation up to date, she said.
Shapiro said she wasn't aware of a woman getting an abortion in Lubbock who had complications and needed hospital care.
AP correspondent Betsy Blaney contributed to this story from Lubbock and Dave Montgomery of the Business Press also contributed.