State: Anti-abortion law needn't prove medical necessity

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by MARK WIGGINS / KVUE News and photojournalist MICHAEL MOORE

Bio | Email | Follow: @MarkW_KVUE

kvue.com

Posted on October 21, 2013 at 6:29 PM

Updated Monday, Oct 21 at 9:39 PM

AUSTIN -- Attorneys entered the federal courthouse in downtown Austin Monday morning for a fight familiar to Texans. 

After the filibuster by state Sen. Wendy Davis (D-Fort Worth) ended with vocal abortion rights supporters drowning out an attempt to pass controversial anti-abortion legislation in the Texas Senate, House Bill 2 (HB 2) was ultimately passed in a second special session of the 83rd Texas Legislature and signed into law by Gov. Rick Perry (R-Texas).
 
The law bans abortions performed after 20 weeks of pregnancy and requires abortion clinics to upgrade to more expensive ambulatory surgical centers. It also places new restrictions on the administration of abortion-inducing drugs and requires abortion providers to obtain admitting privileges in hospitals within 30 miles of where the abortions are performed.
 
A lawsuit filed in federal court by abortion providers seeks to block the latter two provisions which are set to go into effect October 29, challenging their constitutionality by asserting the measures are medically unnecessary and place an undue burden on a woman's right to an abortion.
 
Sarah Wheat of Planned Parenthood said Monday, "We're concerned that if this law goes through, we're now going to see another series of health centers close." 
 
U.S. District Judge Lee Yeakel began Monday's hearing by informing both parties that the purpose of the trial would not be to test the constitutionality of abortion, but to determine whether HB 2 passes constitutional muster.
 
During opening remarks, Texas Solicitor General Jonathan Mitchell argued the burden of proof lies with the plaintiffs, who have failed to prove the statutes are potentially harmful or place an undue burden upon women seeking an abortion.
 
Furthermore, Mitchell argued the U.S. Constitution allows the state to advance its interest in protecting fetal life by passing more stringent abortion regulations, so as long as in doing so it does not create an undue burden. According to Mitchell, the statutes of HB 2 in question were not enacted solely to advance the state's interest in women's health, but to advance the state's interest in protecting unborn life as well. As such, he argued the statutes don't have to be medically necessary in order to legally meet their intended purpose of reducing abortions.
 
Before it was passed, supporters of the bill promised that in addition to protecting unborn life, defending women's health was one of the legislation's top priorities.
 
"Even if it's a procedure on abortion which I or others might disagree with, they have a right to expect the highest form of health care in that serious procedure," state Sen. Dan Patrick (R-Houston) told reporters July 12, before a final vote in the Texas Senate sent HB 2 to the governor's desk. "That's what Texans should take out of this."
 
Many of the bill's supporters still argue that the intent of the statutes in question continues to be about making abortions safer.
 
"When you think about the admitting privileges, remember that's not about the unborn baby, that's about the mom," state Rep. Bryan Hughes (R-Mineola) told reporters during a break in Monday's proceedings.
 
The first witness for the plaintiffs was Planned Parenthood Gulf Coast Medical Director Dr. Paul Fine, a physician who performs medical and surgical abortion procedures in the Houston and Galveston areas. 
 
Fine argued that requiring physicians to follow outdated FDA protocols for the abortion inducing drug RU-486 would put women at greater risk of complication than evidence-based protocols developed within the industry. Fine also argued that the difficulty faced by abortion providers in gaining hospital admitting privileges would force the closure of all abortion clinics West of Interstate 35. 
 
The state caused a stir in the packed courtroom by submitting box loads of documents attorneys argued show complications from abortions have gone under reported in Texas. Attorneys also asserted that any negative consequences for women seeking an abortion would be impossible to tell until the law has taken effect.
 
"It looks to me like they're going to have some good information supporting what we have said all along, and that is that there are a lot more complications," said Texans for Life Coalition president Kyleen Wright. "It's not as safe as people say and that there are a lot of substandard doctors performing these surgical procedures."
 
Acknowledging that the suit would be appealed regardless of the ruling, Yeakel told both parties he hopes to proceed as expeditiously as possible. The trial will continue Tuesday.

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