AUSTIN -- The so-called "Preborn Pain Act" banning abortions after 20 weeks was one of 2013's most controversial items.
The legislation failed during the regular session, but emerged as part of the omnibus anti-abortion legislative package Senate Bill 5. The debate over SB 5 drew record crowds to the Texas Capitol and culminated in state Sen. Wendy Davis (D-Fort Worth) filibustering the bill as the first special session of the 83rd Texas Legislature came to a close. The legislation was passed amid fierce demonstrations in a second special session as part of House Bill 2.
This week, the U.S. Supreme Court declined to take up a decision by the Ninth Circuit Court of Appeals in California which ruled an Arizona ban on abortions after 20 weeks unconstitutional. The high court's decision to allow the circuit court's ruling to stand raised immediate questions over the possible impact on the Texas law.
"I don't believe that necessarily impacts us at all," state Sen. Dan Patrick (R-Houston), one of the Texas bill's strongest backers, told KVUE at a candidate forum in Austin on Monday. "I can't speak for what will happen in the courts down the road, but [it's] very disappointing."
The ruling by the Ninth Circuit Court of Appeals is limited to its geographical jurisdiction, which means Texas is basically fenced off. Texas lies under the jurisdiction of the Fifth Circuit Court of Appeals, which is based in New Orleans. The 20-week ban that was passed as part of the summer's sweeping anti-abortion legislation is not being challenged there, but other parts of the same law are.
Planned Parenthood and other abortion providers filed a lawsuit against Texas over a provision of the law which governs medical abortions, as well as a separate provision which requires doctors who perform abortion procedures to have admitting privileges at a hospital located within 30 miles of where the procedures are performed.
"We've seen a huge impact on our patients across the state," said Sarah Wheat with Planned Parenthood of Greater Texas.
Wheat said the provision requiring admitting privileges has led to the permanent closure of abortion clinics in West Texas and caused either permanent or temporary suspensions of abortion services in at clinics elsewhere, including Austin.
"Fortunately, we've been able to restore those services here, but that's not true in Waco," said Wheat. "That's not true in other parts of the state, and, so, what we've seen is for women in Texas, depending on their zip code, they may or may not have access to safe, legal services."
The provision of HB 2 banning abortions performed after 20 weeks has not been challenged in court. Wheat said only a few hundred women statewide seek abortions after 20 weeks. Altogether, they comprise fewer than 1 percent of the total abortions performed. The ban took effect in October, along with the provisions concerning medical abortions and hospital admitting privileges.
"What they do today is that they have to make arrangements to travel to Colorado or to other states if that's the service that they absolutely feel like they and their family need," said Wheat.
The Supreme Court ruled in Roe v. Wade that women have a right to an abortion until fetal viability. A fetus is typically considered viable around 24 weeks, but medical and scientific improvements have made determination of viability a moving target. The Texas law is based on the scientifically disputed claim that a fetus can feel pain at 20 weeks. The theory has yet to be decided by the courts, but lawsuits in Georgia and Idaho could eventually lead the issue before the nation's high court.
"It would survive. A state has the right to set where they want that limit, and we did," state Sen. Donna Campbell (R-New Braunfels), another of HB 2's major supporters, said Monday. "We know that the fetus, the baby, feels pain at that point, so we would prevail. But I think the real story here is they didn't challenge that part."
Planned Parenthood has yet to announce whether the organization will pursue a legal challenge to the Texas "Preborn Pain Act." A decision by the Fifth Circuit Court of Appeals regarding the two currently contested measures could come as early as this month.
"As always, we will continue to look at all our options and all our resources and try to make sure our patients can get absolutely whatever health care they need," said Wheat.