What just happened in Texas?

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(c) Alexandra Phelan, 2014

Today has seen a new blow to Texan women’s reproductive health rights. A quick background of events for those not familiar:

  • House Bill 2: a Texas law that changes the definition of fetal viability to 20 weeks (drastically cutting back the time period of a woman’s right to seen an abortion: Roe v Wade set viability at ~28 weeks). In addition, House Bill 2 requires that a physician conducting abortions have admission rights to a hospital less than 30 miles away and blocks off-label use of two drugs, limiting women’s access to medication abortions to 49 days after the last menstrual period, rather than 63 days. These latter two provisions are the “Litigated Provisions”.

Timeline

  • June 2013: House Bill 2 passes the Texas House, and upon it being brought before the Senate, Senator Wendy Davis partakes in a marathon filibuster, defeating the Bill.
  • July 2013: Republican efforts don’t stop there, and a special session is held to pass House Bill 2 through the Senate. Governor Rick Perry signs it into law, to take effect 29 October 2013.
  • September 2013: Women’s health organizations (including Planned Parenthood) file a suit in the Federal Court to block the Litigated Provisions of House Bill 2 that violate women’s health rights.
  • 28 October 2013: Federal Court Judge Lee Yeakel strikes down the Litigated Provisions on the grounds that they were unconstitutional, placing an undue burden on women’s access to abortion. Discussion on this case can be found here.
  • 29 October 2013: Texas seeks an emergency temporary injunction from the Fifth Circuit Court of Appeal to block Judge Yeakel’s decision, and asks for a full appeal to be held in January.
  • 31 October 2013: Fifth Circuit Court of Appeal allows in part Texas’ emergency injunction, putting on hold Judge Yeakel’s permanent injunction, allowing the Litigated Provisions to come into effect with one exception: medical abortions allowable for women 50-63 days from their last menstrual period, where, due to a physical abnormality or preexisting condition, a surgical abortion is not a safe option. The Fifth Circuit agrees to hear the full appeal in January 2014. Nearly 20 clinics are forced to close around the State, as they are unable to meet the physician admissions requirements. More on this decision here.
  • 4 November 2013: Women’s health organizations file an emergency application to the US Supreme Court, seeking that Judge Yeakel’s injunction be reinstated until the full appeal is held. More here.
  • 19 November 2013: The US Supreme Court splits on idealogical grounds, refusing to grant the emergency application 5-4. The Texan laws stay in effect pending the Fifth Circuit Appeal.
  • 6 January 2014: Arguments presented to Fifth Circuit Court of Appeal.

And then flash forward to today, 28 March 2014, the Fifth Circuit Court of Appeal has handed down its ruling, reversing all of Judge Yeakel’s decision.

Given the geography of Texas, thousands of Texas women will now have virtually no access to safe and legal abortion services, and in the words of the American Medical Associations and the American College of Obstetricians and Gynecologists, upholding a law that “jeopardizes women’s health in Texas” that does “nothing to protect the health of women”.

This is an incredibly disappointing decision, with the three-judge panel giving Texas the complete go-ahead to violate fundamental human rights by severely restricting women’s health rights. The result of this decision means that both of the Litigated Provisions (requiring physicians to have admission privileges and limitations on medication abortions) come into effect on a permanent basis.

Just how permanent this is remains to be seen: there is still an option to appeal the decision to the US Supreme Court. However, given the 5-4 ideological split seen in the unsuccessful November 2013 appeal, it is not clear whether such an option would result in a decision that protects the fundamental liberties and rights of Texan women to health services.

However one would hope that the Supreme Court, as the United States’ bastion of protecting the liberties and freedoms guaranteed to Americans, when vested with the express jurisdiction to decide on the constitutionality of House Bill 2 (rather than simply on whether the requirements for an injunction have been met) would fulfill this role, not simply reinforcing the personal ideologies of the justices.

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A Taste of Their Own Medicine: Appealing Texas to the US Supreme Court

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Used under creative commons licence, copyright to image held by Mark Fischer on flickr @ http://www.flickr.com/photos/fischerfotos/7432028860/

Sometimes, the consequences of a law on individuals can be too abstract. The implications may be set before a court by lawyers, but when a decision is made that affects not only a woman’s rights but also the tangible, physical sense of control over her own body, its consequences are immediate.

On Friday, more than forty women were turned away from previously scheduled abortions at Whole Women’s Health clinics in Texas, and more than one hundred women have had their appointments cancelled at a Planned Parenthood clinic in Austin. Only a few days earlier, a Federal Court Judge had struck down parts of a Texas Law that required physicians performing abortions to conform to strict admission privileges requirements as unconstitutional.  On Halloween however, the Fifth Circuit Court of Appeal agreed to hear an appeal by Texas at a later date, while also putting the Federal Court Judge’s decision on hold. As a result, come Friday morning, the admission privileges requirement (even though deemed unconstitutional by a Federal Court Judge) came into effect, denying Texas women in areas unable to conform to the strict requirements their reproductive rights, and putting their health and safety at risk.

While the full appeal is yet to be heard, and the current stay of the decision only temporary until then, there is a risk that the Court of Appeal, may permanently uphold the constitutionality of the Texan abortion law reforms.

In a proactive response, the women’s health providers who filed the original suit have lodged an emergency application with the US Supreme Court to reinstate the Federal Court’s decision to strike down the Texan laws. In effect, they’ve given the Texas Attorney-General a taste of his own medicine.

According to the Center for Reproductive Rights, the Supreme Court has given Texas until next Monday (11 November) to respond to the appeal. Until then, the law will remain in place. Here’s hoping that even in granting a temporary decision, the Supreme Court recognises that the mere risk of violating Texan women’s constitutionally protected rights, as well as the risk to their health and access to essential services, far outweigh Texas’ clearly political position on this matter.

Halloween descends: Texas abortion law reinstated temporarily

In a fitting All Hallows’ Eve turn of events, the Texas Attorney-General’s emergency motion to reinstate the controversial abortion law following Monday’s District Court decision has been granted. Feel like banging your head against a table? Here’s the link to the decision, or alternatively read on.

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© Alexandra Phelan (2013)

Last night, the United States Fifth Circuit District Court of Appeal pressed pause on Justice Yeakel’s decision that requiring physicians performing abortions to have admission privileges placed undue burden on women seeking abortions, and was unconstitutional. As a result of granting the emergency motion and staying the District Court’s decision, the Texas law at the centre of these legal debates has come into effect. Like a temporary injunction, the Court of Appeal will hear the appeal in full at a later date, and come to a permanent decision on the law.  If you’re legally minded, how the Court of Appeal came to its decision is discussed in more detail below. Regardless of the outcome of that decision, it is likely that, in the words of Texas Attorney-General Greg Abbott (a leading Republican candidate for governor and the proponent of the law) “this case is going all the way to the United States Supreme Court”.

According to the Planned Parenthood Federation of America, one-third of Texas health centres providing abortions will be forced to cease providing them today. Planned Parenthood, who has 13 clinics in Texas, has already been forced to stop providing abortions at four of its clinics today, as they have been unable to find physicians satisfying the law’s required admission privileges.

In a positive turn however, the District Court of Appeal did not grant the emergency motion staying Judge Yeakel’s decision on ensuring that pregnant women who would not be suitable for surgical abortion can still access medication abortions up to 63 days from her last menstrual period. That being said, the fact that the District Court of Appeal describes these women as “mothers” demonstrates the unfortunate perspective from which the court approached this decision.

To stay or not to stay? How the Court of Appeal came to its decision

The emergency motion lodged by Texas requested that the Fifth District Court of Appeal stay the District Court’s Monday decision as if it had not been made, therefore allowing the Texas law to come into effect on 1 November 2013.

As is the case with temporary injunctions pending a full trial, a decision on a “stay pending appeal” is based on a series of tests to determine whether the stay should be temporarily granted, with a permanent decision coming at a later date. As a result, none of the actual facts of the case, “the merits”, are decided upon.

The Fifth District Court of Appeal considered four factors in its decision:

  1. Whether Texas made a strong showing that it was likely to succeed on the merits (i.e. is it likely to win at the later trial);
  2. Whether Texas will be irreparably injured if a stay is not granted;
  3. Whether issuance of the stay will substantially injure the other parties interested in the proceeding; and
  4. Where the public interest lies.

As you can see in the latter three points, in a case like this, compared to a purely commercial situation, it’s pretty difficult for the merits of the case to not be assessed to some degree. Unfortunately, as a woman’s health and human rights advocate, it’s hard not to read the Court of Appeal’s ruling as being essentially a decision on the merits, including the statement that “the district court’s finding … is not supported by the evidence, and in any event, “a legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data”. That is, legislators are completely entitled to make laws that are not based on any evidence, even if they justify the laws as being based on rational speculation. If you think that sounds a bit oxymoronic, you’d be right. Perhaps its the scientist in me, or the public health policy advocate, but when it comes to making decisions about women’s health, actual medical or other scientific evidence is critical in rationalising legislative restrictions. From a legal standpoint however, the sovereignty of the legislature is a well established element of democratic representation, and here, the Court of Appeal has made it clear that the decisions of the Texas legislature, even if based on evidence found by a court to be wanting, reigns supreme.

Fundamentally (see what I did there?), Texas pushed the argument that the laws these laws were crafted “to protect the health and safety of Texas women”. How delightfully paternalistic. While abortions may require extra protections to ensure they are carried out in a safe manner, that is due to their history as illegal and hidden procedures, carried out in unsanitary and unsafe conditions. It is the illegality of abortion that has caused these extra protections. In contemporary society, with legalised and widely available services for women’s reproductive health, abortion may be treated as any other medical procedure. As a result, the scrutiny of physicians performing abortions should be no more and no less than any other surgery or drug administration. It is the fact that abortions are singled out in these laws that demonstrates that they are discriminatory against women and in violation of their constitutionally protected reproductive rights.

The District Court of Appeal’s finding that the the State does have a case to make on the merits seems  superficial. However, such conclusions are often the case with temporary measures by courts, with full analysis of the merits taking place at a later date. The problem however, is the injury experienced by women in Texas per element three the four stage test set out by the Court above. How the Court came to the conclusion that having to travel 240 km (150 miles) to obtain an abortion is not an undue burden is beyond me. When the Court proposes that women drive (or bus, or train, or bicycle, or walk) to Corpus Christi, 160 miles away from Rio Grande City, I can completely understand why women cross the border to Mexico. If Texas legislators truly cared about women’s health and safety, they would ensure that all Texan women, regardless of race or whether they live in rural or urban areas, have access to abortions. It is quite clear that none of these laws are about women’s health, and the Court of Appeal’s failure to see through this, and failure to adequately weigh the detriment to Texas women in its decision to stay, is disappointing.

Worth watching

Check out Amy Hagstrom Miller on the Rachel Maddow show last night talking about the ruling.

Good but not Great: Parts of Texas Abortion Law Declared Unconstitutional

Texas Legislature 2013

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Update 2 30 Oct 2013 @11.25am: The 5th Circuit Court of Appeal did not grant Texas’s emergency motion to block Judge Yeakel’s decision. As a result, Judge Yeakel’s permanent injunction preventing the new abortion laws discussed below from coming into effect remains in effect, allowing clinics to stay open and doctors to administer medical abortions in certain cases.

Update 29 Oct 2013 @1.52pm: Overnight, Texas asked for an emergency order from the 5th Circuit Court of Appeal to block Judge Yeakel’s decision. The struck out provisions would have otherwise gone into effect today. Texas has asked the Court of Appeal to decide on an emergency temporary injunction today, and hear the full appeal in January.

Less than 2 hours ago, a Federal Court Judge in Texas struck down two key parts of the Texas Abortion Law amended by “House Bill 2” on the grounds that they placed undue burden on women seeking an abortion. The law is the same one made famous by Democrat Senator Wendy Davis’ marathon filibuster efforts when House Bill 2 was brought before the Texas Senate in June this year.  House Bill 2 was later signed into law by Governor Rick Perry after passing both the Texas House and Senate in a special session, however women’s health organisations, including Planned Parenthood, launched an appeal to the law seeking that it be declared unconstitutional by the court. House Bill 2 is scheduled to take effect on 29 October 2013.

The lay of the land

In Texas, a woman has a right to terminate her pregnancy before it is viable. A law will be unconstitutional if it imposes an undue burden on a woman’s decision to abort a fetus before it is viable. An undue burden includes any legislation that has the purpose or the effect of placing a substantial obstacle in the path of a woman seeking an abortion for a nonviable fetus. Where a fetus is viable, legislation may be made restricting the right to an abortion, except where an abortion is necessary for the preservation of the life or health of the mother. In the seminal (or perhaps ovarial?) case on this issue, Roe v Wade, fetal viability “is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks”. Part of House Bill 2 changed the definition of fetal viability to 20 weeks, drastically cutting back the time period of a Texan woman’s right to an abortion for a nonviable fetus.

This change to the definition of fetal viability was not the central point of the court’s decision – rather, two other parts of House Bill 2 were challenged on the grounds that they were unconstitutional.

Judge Lee Yeakel of the Federal Court for the Western District of Texas (see a primer on US District Courts here) held that two parts of House Bill 2 were unconstitutional, as they placed undue burden on women seeking an abortion of a nonviable fetus.

In summary, Judge Yeakel held that:

  • the requirement that doctors performing abortions have admission privileges was without a rational basis and placed a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus; and
  • the restrictions on medical abortions place a similar obstacle in cases where a physician finds such an abortion necessary.

The findings of the Court on these two points are discussed in further detail below.

Admission privileges requirement

Admission privileges are the ability of a doctor to admit a patient to a particular hospital for medical treatment. Typically, a doctor will have admission privileges where they are on a hospital’s medical staff, however admission privileges may also be given to external doctors to admit patients to a hospital.

House Bill 2 required that a physician performing an abortion must have admission privileges at a hospital with obstetric or gynaecological health care services less than 30 miles away from where the abortion is performed. If a physician performs an abortion contrary to these requirements, they are liable for a Class A misdemeanour, punishable by a fine up to $4,000. As a result, doctors working in an abortion clinic in a rural area or any area more than 30 miles from a gynaecological hospital where they have admission privileges would be criminally liable under the House Bill 2.

Texas argued that the admission privileges requirement was a necessary part of protecting the health of women, as a physician with admission privileges will be in a better position to ensure continuity of care at a hospital in the case of patient complications. In addition, Texas argued that this would also decrease the likelihood of medical errors in the patient transfer process from abortion provider to hospital. Texas failed to provide any evidence supporting a correlation between medical errors, patient transfers and a physician’s “admission privilege” status. The Court destroyed this position rather logically – pointing out that admission privileges have nothing to do with a patient when they turn up at a hospital for emergency care, and that by law a hospital cannot refuse to provide emergency care. In addition, there was no evidence that admission privileges affected a patients quality of care in an emergency room. As a result, the Court found that there was no rational basis of imposing this requirement, and as such a requirement would leave at least 24 counties in the Rio Grande Valley without an abortion provider who could satisfy it, women in those regions would face a substantial obstacle in accessing abortion services.  The outcome: the admission privileges requirement places an undue burden on Texan women seeking to exercise their Constitutional right to an abortion before fetal viability, and as a result, is unconstitutional and struck out.

Medication abortion

A medication abortion typically requires the administration of two drugs. The first, mifepristone, or RU-486, acts by preventing a fertilised egg from attaching, or an embryo from staying attached, to the uterine lining. Misoprostol acts to contract to uterus and expel the embryo and uterine contents. These drugs are an alternative to surgical abortions, or dilation and curettage.  The FDA has approved the use of these drugs to the first 49 days after a woman’s last menstrual period. The American College of Obstetricians and Gynecologists has endorsed the use of these drugs in a varied manner (“off-label”) and at lower doses, resulting in reduced doctor visits and side effects while also extending the period that RU-486 can safely be used up to 63 days after a woman’s last menstrual period.

House Bill 2 amended Texan safety laws to restrict the administration of these drugs to the FDA protocol, while allowing the off-label dosages. In Court, Texas conceded that the mixed FDA/off-label protocol required by the law was completely untested. The Plaintiffs argued that the FDA protocol required by House Bill 2 is not medically necessary and the off-label protocol, taken as a whole to include administration method and dosage, is the safest and most widely used use of RU-486. In addition, the FDA approach prevents medication abortions from 50 – 63 days, leaving women with only surgical options to abortion. The Court held that the differences between the off-label and FDA protocol may on their own be incidental, but as a totality, such as doctors visits plus side effects plus cost, but in totality may become an undue burden, however this was not satisfied in this situation. The Court also was not satisfied by the argument of a “preferred” option of medication versus surgical abortions, stating that “[i]ndividuals do not have a constitutional right to a preferred medical option, so long as a safe, medically accepted, and actual alternative exist”. For the Court, surgical abortions satisfy this.

However (and it’s a big however!) where a medication abortion is the only safe and medically sound option for women with particular physical abnormalities or preexisting conditions, House Bill 2 places a substantial obstacle in the path of such women seeking an abortion. Even though the Attorney-General of Texas stated that they wouldn’t prosecute a doctor performing such an abortion, “a promise not to prosecute from the Attorney General is not binding”.

As a result, the Court held that the medication abortion provisions of House Bill 2 placed an undue burden on those women for whom surgical abortion is, in the medical opinion of their physician, a significant health risk during a pregnancy from 50 to 63 days after their last menstrual period.

Conclusions

The findings of the Court and Judge Yeakel are generally good outcomes. As a result of this decision, 1/3 of Texas abortion clinics that would otherwise have likely had to close will not, and safe, medication abortions are available for women whose health would otherwise be put at risk by a surgical abortion.

Unfortunately, the 20 week viability definition still remains on foot. In addition, women must fall within a very specific category to have access to medication abortions after 49 weeks, which are safe, effective and more private than surgical options.

In the words of Nancy Northup from the Centre for Reproductive Rights, “[p]oliticians, not doctors, pushed for both of these unconstitutional restrictions – despite the best medical standards for women’s health care”.

The Texas Attorney General is expected to file an appeal of Judge Yeakel’s order to the 5th Circuit Court of Appeal.

Regardless of whether that occurs, there is more work to do in Texas: access to safe abortion options are a reproductive right, and an essential element of access to essential healthcare for women.