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.
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.
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.