Half Measures

The Texas abortion ruling gives a major victory to pro-choicers and a minor one to pro-lifers, but settles nothing.

Supporters of Texas women's right to reproductive decisions rally at the Texas State capitol on July 1, 2013 in Austin, Texas.
Supporters of women’s right to reproductive decisions rally at the Texas Capitol on July 1, 2013.

Photo by Erich Schlegel/Getty Images

Austin-based U.S. District Judge Lee Yeakel handed down a major decision this afternoon in a hotly contested abortion battle. Assessing two controversial provisions of the restrictive new abortion law passed last July by the Texas legislature, Judge Yeakel struck down one provision of the law—requiring abortion providers to have admitting privileges at hospitals within 30 miles of their clinics—and upheld a second—restricting physicians’ ability to offer nonsurgical abortions unless the mother’s health or life is at risk.

The Texas law, which launched Wendy Davis to national prominence thanks to her 12-hour filibuster last summer, is a doozy. It bans most abortions after 20 weeks, the point at which a fetus allegedly feels pain; adds surgical-style building requirements for clinics; and regulates nonsurgical abortions. Some clinics have either shut down, or plan to, claiming they can’t make modifications before the law goes into effect. The two provisions in dispute before Judge Yeakel forced doctors to use older protocols for administering abortion pills, and to have admitting privileges at a hospital within 30 miles of their clinics.

The suit was filed by Planned Parenthood, the ACLU, and the Center for Reproductive Rights, as well as abortion providers and doctors. Judge Yeakel opted to skip the preliminary phase of the hearing which would have determined whether to enjoin the disputed provisions, and held a hearing on the merits, whether the law violated the Constitution. In a 26-page decision this afternoon he found that part of it does.

The opinion opens with the observation that “Today there is no issue that divides the people of this country more than abortion. It is the most divisive issue to face this country since slavery. When compared with the intensity, emotion, and depth of feeling expressed with regard to abortion, the recent arguments on affordable healthcare, increasing the debt ceiling, and closing the government retreat to near oblivion.”

Judge Yeakel goes on to make the following conclusions: “(1) the act’s admitting-privileges provision is without a rational basis and places a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus, and (2) the act’s provisions that place restrictions on medication abortions do not place such an obstacle, except when a physician finds such an abortion necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”

As a result, dozens of clinics that were set to be shuttered in Texas will stay open. 

In striking down the admitting privileges section of the law, the court cites Supreme Court precedent for the rule that “before viability, a State, may not prohibit any woman from making the ultimate decision to terminate her pregnancy.” And “[The State] also may not impose upon this right an undue burden, which exists if a regulation’s ‘purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” On the other hand, notes the court, “[r]egulations which do no more than create a structural mechanism by which the State …  may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman’s exercise of the right to choose.”  

Yeakel completely rejects the state’s argument that requiring an abortion provider to have admitting privileges at a local hospital, helps her “manage patient complications by providing continuity of care” and finds that “whether an abortion provider has admitting privileges does nothing to further the interest of patient care by improving communication. Because there is no rational relationship between improved patient outcomes and hospital admitting privileges within 30 miles of a facility in which a physician provides abortion services,” the provision is unconstitutional.

The court goes on to find that even if there were a “rational” reason the admitting-privileges requirement would place an undue burden on women seeking abortions and must fail. Why? Because  “by requiring abortion providers to have hospital admitting privileges, the evidence is that there will be abortion clinics that will close. The record reflects that 24 counties in the Rio Grande Valley would be left with no abortion provider because those providers do not have admitting privileges and are unlikely to get them.”

The second constitutional challenge concerns the nonsurgical abortions that require that a doctor administer two different drugs: mifepristone and misoprostol. The Texas statute had restricted the use of abortion-inducing drugs to the FDA protocol developed in 2000, and as Emily Bazelon explained in Slate, the result is that physicians are constrained to use older, costlier, and sometimes more dangerous protocols as opposed to “off-label” protocols they may deem to be best practices. (This is an issue likely headed to the Supreme Court very soon).

In his ruling today, Judge Yeakel finds that “when performed in accordance with the off-label protocol, medication abortion is a safe and effective procedure, as is medication abortion with the FDA protocol.” Because “reasonable medical opinion on the overall safety, efficacy, and preferability of the protocols may differ” he concludes that “taken as a whole, the FDA protocol is clearly more burdensome to a woman than the off-label protocol.” Okay. But because “the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate” a law, and because the record before him doesn’t add up to an “undue” burden on the mother, he then holds that the medical abortion provision can stand.

Judge Yeakel is careful to craft an exception for these procedures in “situations where medication abortion is the only safe and medically sound option for women with particular physical abnormalities or preexisting conditions.” By allowing the ban on off-label medical abortions to stand, with an exception for certain health conditions or to save the life of the mother, he ups the ante in the fight over these non-surgical procedures as they work their way up to the court.

Texas officials were always been quite open that the object of the new abortion bill went beyond merely promoting maternal health. Gov. Rick Perry openly declared his goal to make abortion at any stage “a thing of the past.” And at arguments in the case last week, state Solicitor General Jonathan Mitchell was clear that the law was not enacted solely to protect the health of women seeking abortions but “also serves to advance the state’s interest in protecting fetal life.” In other words, Texas has done the courts the courtesy of abandoning the legal fiction that functionally ending access to abortion for thousands of woman by demanding things like wider hallways in clinics, was being done to promote safe and healthy medical procedures. With his decision today Judge Yeakel rejects the transparently punitive (and medically unnecessary) requirement that doctors have admitting privileges at local hospitals. But in upholding a restriction that would offer women costlier, riskier medication abortions as opposed to best practices, he ensures that murky and unsubstantiated arguments about women’s health still get far more traction in the courts than they deserve. A law that offers women substandard care, in the interest of protecting their life or their health, makes no more sense today than it did yesterday.