AUSTIN, Texas – After a summer filibuster only managed to temporarily delay passage of tough new Texas abortion restrictions, advocacy groups turned to a federal judge Monday in their latest attempt to derail the law before it takes effect next week.
Planned Parenthood and other abortion rights organizations have sued to block key portions a new law that threw the Legislature into chaos before it was approved.
Beginning Oct. 29, it requires abortion doctors to have admitting privileges within 30 miles of the clinic, that they follow strict instructions for pill-induced medical abortions and only perform abortions after 20 weeks of pregnancy if health of the mother is in danger or the fetus is not viable.
The law passed the GOP-controlled Legislature despite marathon speech in June by Democratic Rep. Wendy Davis, who is now running for governor and amid massive protests on both sides of the issue at the state Capitol.
Austin-based U.S. District Judge Lee Yeakel has been asked to delay enforcement of the admitting privileges rule and medical-abortion restrictions. Federal judges in other states have found problems with similar provisions. If Yeakel finds the law unconstitutional, though, Attorney General Greg Abbott -- a Republican also running for governor -- will appeal that decision to the conservative New Orleans-based court.
"The abortion issue is a big issue in this country and it's a divisive issue," Yeakel said. But he added that he's only interested if Texas' new law is constitutional: "This court is not to rule on whether women should be allowed to have abortions ... or my personal beliefs."
In opening statements, Texas Solicitor General Jonathan Mitchell defended the law, saying it not only protects mothers but also "fetal life."
That's an important distinction because, while the law's authors have long said they'd like to ban abortion completely statewide, they also insisted the issue was the safety of Texas women -- not only ideological or religious objections to abortion.
Starting next October, the law further requires all abortions take place in an ambulatory surgical center -- a mandate that could leave only a handful of clinics open in the nation's second most populous state. But that portion hasn't been challenged legally since it won't come begin until 2014. Also not included in the suit is the 20-week ban since the vast majority of abortions are performed prior to that threshold.
Mitchell said statute "allows the state to impose such restrictions as long as it does not impose an undue burden on the patient" and that those suing have no evidence it will adversely affect women getting abortions.
Attorneys for Planned Parenthood offered no opening statement but called witnesses they said can show how the admitting privileges and new rules on medical abortion are harmful to women and could force many clinics around the state to close. An emergency room physician from Houston, Dr. Jennifer Carnell, said requiring hospital admitting privileges would not improve the care women undergoing abortions receive -- even for those who have medical complications that require urgent hospitalization.
Another witness, Dr. Paul Fine, medical director of Planned Parenthood Gulf Coast, was asked if admitting privileges and medical abortion provisions were medically necessary. "Absolutely not," he replied.
"I believe that both of these provisions will harm women," he said, later telling the packed courtroom: "It's turning back the clock two decades."
Fine said limits on pill-induced abortions would require physicians to more closely adhere to instructions on using medications that came out in 2000 -- rather than best-practices perfected by doctors in the years since. He said doing so would increase the risk of some patients needing surgery to correct complications from the medically induced abortions.
Planned Parenthood has argued that abortion clinics in Fort Worth, Harlingen, Killeen, Lubbock, McAllen and Waco will have to close due to the admitting privileges requirement -- and Fine said no abortion clinics would be left operating west of Interstate 35.
"Women will be driving six to eight hours," he said. Under cross examination, however, Fine said he had no direct knowledge of what clinics would be forced to because of the new law.
Fine also testified that hospital medical boards can choose who to extend admitting privileges to and may deny them to doctors who perform abortions on ideological grounds.
He said many doctors don't like to tell many people they perform abortions for fear they could be targeted for violence by activists -- but Fine said the risk was worth it because he saw what women went through before the Roe v. Wade U.S. Supreme Court decision.
"I remember women coming in with a coat hanger," he said. "Deaths were common and tragic, and I'll never forget the look in those women's eyes."
When the state asked how many abortions he performed last year alone, Fine answered "probably several hundred."