(this article appeared at http://law.studentsforlife.org/2013/10/11/protecting-women-why-texas-hb-2-will-be-upheld/)
I was proud to travel to Austin this summer with SFLA to see the Texas legislature pass HB 2, which protects women and innocent children from shoddy abortion practices. While we were elated that HB 2 passed, we knew a legal challenge was coming, and on September 27th Planned Parenthood, along with other abortion providers, filed suit against Attorney General Greg Abbot and other Texas governmental officials.
Planned Parenthood’s lawsuit currently challenges only two of the provisions included in the bill: 1) the requirement that doctors performing abortion have active admitting privileges at a hospital within 30 miles of the abortion facilities; and 2) that medication abortions using RU-486 must follow the already-existing FDA protocol for administration and follow-up. The 20 week ban is based onscientific research stating that at least 20 weeks, preborn children can feel pain, is not being challenged. It is rumored that this is because the Federal Court of Appeals in Texas is conservative enough to rule against Planned Parenthood, and they don’t want any rulings that could give the Supreme Court a reason to uphold such a ban.
In the lawsuit filed last week, Planned Parenthood claims that one third of the abortion providers in Texas would be forced to close because of these two regulations, though they never actually show how they reached that estimate. Only the admitting privileges requirement should have an effect on the operation of these abortion clinics, as the RU 486 regulation only affects how it is administered, and doesn’t ban the practice altogether.
After falling back on tired and disproven claims like “abortion is safer than childbirth”, Planned Parenthood attacks Texas’ decision to require clinics to follow the FDA approved regimen for use of the dangerous RU 486 drug. Currently the FDA regulations dictate that the drug is safe for use at the recommended dose up 49 days into a pregnancy, yet many clinics vary the dosage and use the drug two weeks past the FDA approved date. This requirement would also prevent clinic staffers who are not doctors from administering the drug, and would require the patient to return to the clinic for the second dose of the drug instead of taking it without any supervision at their home. Finally, it would require a flow-up appointment to assure that the abortion was completed, and that no part of the aborted child remains in the womb which, left un-removed, leads to infection and even death of the mother.
Planned Parenthood is hinging its argument against the RU-486 regulations on the idea that they are medically unnecessary, and cite a few organizations (including one outside the US) who agree. But as Justice Kennedy pointed out in the 2007 case Gonzales v. Carhart, “Medical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts.”
The Supreme Court also noted in Planned Parenthood v Casey, that “not all burdens on the right to decide whether to terminate a pregnancy will be undue”, and acknowledged that a state’s interests in protecting unborn life, in preserving the integrity of the medical profession, preventing the coarsening of society’s moral sense, and promoting respect for human life more generally, are strong enough to warrant restrictions prior to viability that make abortion more difficult or expensive to obtain.
At the trial level, both sides will present medical evidence in regards to this issue, but it is in keeping with precedent for the courts to defer to the Texas Legislature’s medical regulations on the administration of the RU-486 abortion drug, despite some doctors disagreeing with the judgment. Additionally, as there are alternative abortion methods available, the undue burden argument is hard to support. However, Planned Parenthood challenges this by contradicting their own multiple claims regarding the safety of abortion, saying that it could significantly endanger a woman’s life to have to use an alternate method of abortion.
The second regulation deals with requiring abortion doctors to have admitting privileges at a hospital within 30 miles of the clinic. Planned Parenthood makes two allegations in regards to this requirement: 1) that it places an undue burden on women seeking abortion, due to its potential to limit the number of doctors who can perform abortions in Texas, and 2) that the requirement is “unconstitutionally vague” because, apparently, Planned Parenthood doesn’t know what the word “active” means in the context of “active admitting privileges”.
Now the first allegation is based on their previous claim that this would force one-third of Texas’ abortion clinics to close, which again, is not supported by the factual statements contained in the lawsuit. In fact, Planned Parenthood admits that some of their providers have already been able to secure admitting privileges, and many are still waiting to hear back from hospitals.
Additionally, this whole argument is based on Planned Parenthood’s opinion that the criteria Texas’ hospitals use when deciding whether to grant admitting privileges, is “unrelated to a physician’s ability to provide high-quality abortion care.” But some of those criteria include things like board certifications, malpractice history and reported complications, level of experience and expertise, and validation of educational credentials- how are these issues not relevant to the quality of care a woman receives in these clinics? The country recently saw the reality of what takes place in abortion clinics with the horrifying Gosnell trial. There is no doubt in the minds of many people that a regulation like this one would have exposed Kermit Gosnell as the murderous man he really was- but instead he was able to escape notice due to a lack of enforced regulations.
Since Planned Parenthood v. Casey, the Supreme Court has repeatedly held that a State has a compelling interest in the safety of the mother who is undergoing an abortion, in the preservation of the integrity of the medical profession, and in recognizing the dignity of human life. Additionally, since Casey the swing vote on abortion – Justice Kennedy – has not voted against any regulations on abortion that has been proposed. Therefore, there is precedent for being permissive in relation to abortion regulations. For these reasons I believe it is likely that the Texas regulations will be upheld.