The battle over Texas’ controversial new abortion law will hit the courtroom Monday as part of a legal challenge seeking to squash elements of the Republican-led mandate that sparked mass protests at the Legislature over the summer.
Three groups will argue in federal court here that new standards requiring abortion providers to gain admitting privileges at local hospitals and restricting the use of abortion-inducing drugs are unconstitutional and an undue burden on women.
Collectively, the Center for Reproductive Rights, Planned Parenthood and the American Civil Liberties Union plan to call a total of five witnesses, provide written testimony from three experts and present a flurry of data and documents to make their case, according to court filings issued Friday.
Attorney General Greg Abbott’s legal team will defend the abortion law on behalf of the state, arguing that the law is sound and that the three groups suing don’t have standing to wage a legal challenge. Abbott’s team has said in court documents that it will refrain from calling live witnesses, making its entire case dependent on written testimony from eight experts.
The courtroom showdown in Austin is expected to last two days and is the product of weeks of rancorous and partisan fighting at the Legislature, which in July passed some of the toughest abortion restrictions in the country.
Included in the proposal was a ban on abortion after 20 weeks of gestation, along with standards that allow abortions only in surgical facilities, require doctors performing abortions to have admitting privileges at a nearby hospital and place greater controls on abortion-inducing medications.
In the lawsuit, abortion-rights advocates targeted the two parts of the statute set to take effect Oct. 29: one mandating that doctors gain admitting privileges at local hospitals less than 30 miles from where the abortion is performed and another that dictates when abortion-inducing drugs can be used. U.S. District Judge Lee Yeakel has signaled that he plans to rule on the case by Oct. 28, lawyers said.
Abortion-rights activists argue that local hospitals rarely grant admitting privileges to abortion doctors and that the law will force clinics in Lubbock, Waco, Killeen, Harlingen and McAllen and three providers in Fort Worth to stop doing abortions.
The result, according to court documents, will be an estimated 22,000 Texas women annually denied access to abortions, while one in 12 seeking the procedure would be forced to travel more than 100 miles.
“These laws are really going to have a devastating effect on access to reproductive health care,” said Janet Crepps, a lawyer for the Center for Reproductive Rights.
Texas is among several states facing legal battles over new abortion restrictions targeted at hospital-privilege requirements. Judges in North Dakota, Wisconsin, Mississippi and Alabama have blocked similar laws from going into effect. Those cases are still pending.
The law’s supporters say the provision is necessary to make abortions safer. A spokesman for Abbott did not return a request for comment.
But in court documents, Abbott’s legal team said any burdens brought on by the new law would be “self-imposed” because abortion doctors “rely on travel and employment of contract physicians” as the basis of their business models.
“Plaintiffs cannot blame the State or (House Bill 2) for the costs associated with their business strategies,” the state’s lawyers wrote. “Added travel costs and associated inconveniences do not constitute an undue burden of law.”
The second part of the legal challenge focuses on the requirement that providers administering the abortion-inducing medication called RU-486 follow protocol set by the Food and Drug Administration. It would also ban the use of the drug after 49 days of gestation, instead of the previous standard of 63 days, would require women to make extra visits to their clinic and take the second dosage of the drug in front of a physician.
Abortion-rights advocates argue in court documents that the law “requires an outdated, inferior protocol” and represents “a dramatic departure from accepted medical practice.” Proponents of the measure say the law is necessary to protect patients by ensuring they are aware of possible dangers and can receive emergency care if necessary.
“Home isn’t a back alley, but if that’s when some of the complications occur, home is no better than a back alley,” said Lawrence Phillips, a lawyer representing the Texas Eagle Forum, which along with Lt. Gov. David Dewhurst and 55 conservative members of the Legislature, filed a brief in support of the new law.
Whatever the outcome of the trial, the result will not be final. The losing side is all but guaranteed to keep fighting and take the case to the 5th U.S. Circuit Court of Appeals.
“I don’t think there’s any question if we get any kind of injunctive relief that they (the state) will appeal,” said Crepps, the Center for Reproductive Rights lawyer.
Phillips agreed that an appeal is imminent. “Whatever side doesn’t get what they want is going to appeal — and that appeal would be handled quickly,” he said.