Despite Setbacks, Pro-Choice Groups Continue to Challenge Texas Anti-Abortion Law

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Posted Nov. 6, 2013

Interview with Gretchen Borchelt, director of state reproductive health policy at the National Women's Law Center, conducted by Melinda Tuhus

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During the most recent legislative session in Texas, a serious fight erupted over an omnibus anti-abortion bill that included many restrictions that would make it almost impossible for many women in the state to get an abortion. Despite protests by thousands of Texans, supporting pro-choice legislators like state Sen. Wendy Davis, the bill passed in a special session and was signed by GOP Gov. Rick Perry. Two of the provisions were challenged in court by Planned Parenthood and other groups. One measure in the law requires that doctors performing abortions get admitting privileges at a local hospital. Another measure mandates doctors use an outdated protocol when performing drug-induced abortions with RU-486, the so-called abortion pill. Initially, federal district court Judge Lee Yeakel struck down the admitting privileges requirement as unconstitutional, and partially struck down the medication protocol. But last week, a three-judge panel at the Appeals Court level – all women judges appointed by President George W. Bush – overturned the lower court ruling and permitted the controversial Texas law to go into effect. Now Planned Parenthood and other pro-choice groups have appealed to the U.S. Supreme Court to reinstate the earlier injunction blocking portions of the law concerning doctor’s admitting privileges.

Between The Lines’ Melinda Tuhus spoke with Gretchen Borchelt, director of state reproductive health policy at the National Women's Law Center, about what happens next in Texas. She also provides an overview of the many anti-abortion laws across the country and her group’s efforts to challenge them.

GRETCHEN BORCHELT: And so that was a good outcome from the district court. And the state immediately appealed that decision to the Appellate Court, the next court up. And a very hostile, anti-choice judge, unfortunately, was the judge who was reviewing – as part of the panel that was reviewing this. And so they rejected the district court decision and said the law could go into effect. And what it means, basically, in that one in three Texas women will no longer have access to safe abortion services in the state of Texas. And we just learned this morning that Planned Parenthood has sent an emergency petition to the Supreme Court to try to stop that law from going into effect, again.

BETWEEN THE LINES: So, an abortion doctor needing admitting privileges does sort of make sense on the face of it. But any woman needing emergency care would be admitted to a nearby hospital in any case, right?

GRETCHEN BORCHELT: That's right. If a woman had a complication – and I should underscore how rare that is; abortion is a very safe procedure – but if a woman were to have a complication and needed to go to an emergency room, she would get cared for. Hospitals have to take patients who are having an emergency, and they have to care for them. And that is appropriate; we want those women to get care. The problem is that these kinds of requirements are extremely difficult for a provider – especially one who doesn't need to use the emergency room often – to meet. So they may require that doctors meet a certain number of admittances, and an abortion provider, again, who has safe procedures and doesn't have to admit women, wouldn't be able to meet those. And we also know that there are a lot of Catholic hospitals who won't grant a provider admitting privileges if that provider performs abortions. So we've seen them come up in a number of other states, including Mississippi, which only has one abortion clinic. And we know that every single provider who works for that clinic was denied admitting privileges at every hospital to which they applied. So it really is a back-door ban on abortion. It's a way for politicians to drive abortion providers out of practice.

BETWEEN THE LINES: Gretchen Borchelt, are you aware of any documented cases where women have either tried to self-abort or maybe had major medical problems or even died due to lack of access to abortion care?

GRETCHEN BORCHELT: Well, we've heard some stories, actually in Texas, which, as we know is already challenging because of the geography there, of women who, when they aren't able to access abortion from a provider who's doing it safely and legally, we've heard stories of women crossing the border into Mexico and getting drugs, and taking them without medical supervision and oversight, and some very serious consequences to their health, and there may even have been a case where a woman died. So certainly, based on this decision in Texas and the fact that one-third of abortion providers are going to have to stop performing abortions if this law goes into effect, we're very concerned about the women there turning to these unsafe measures.

BETWEEN THE LINES: There are similar attacks on women's reproductive rights going on in many other states. Can you tell us where these restrictions have gone into effect and where they're still in litigation and not in effect?

GRETCHEN BORCHELT: Sure, yeah. So, we've kind of seen this tidal wave of abortion restrictions going on in the states this year. In the beginning of the legislative session, we saw a lot of these outright attacks on abortion, just extreme abortion measures where they're trying to ban abortion outright. North Dakota was one of those states that banned abortion at six weeks of pregnancy; Arkansas also banned abortion at 12 weeks of pregnancy; very, very early in women's pregnancy – six weeks is often before most women know they're pregnant. Both of those have been struck down, and I think when we see those kind of blatant attempts to overturn Roe versus Wade and a woman's constitutional right to an abortion, we see judges say, "No, you've gone too far."

What's more worrisome is that these other kinds of restrictions, these restrictions on abortion providers, these interferences with the doctor-patient relationship – these are working their way through the courts in a lot of states and we're seeing decisions come out different ways, and so the regulations that are targeting abortion providers – the ones that force providers to have a hallway of a certain size, or make sure there's a water fountain in the waiting room – which are just medically unnecessary and very burdensome to providers and force them to shut down – those have been upheld in some states, so we now have 28 states that have some kind of requirement on providers that is more than what is medically necessary.

Now I will say that Texas so far is an outlier in this admitting privileges fight. I mentioned earlier Mississippi has this kind of requirement, and it's not the only one that's passed it in the last few years. Alabama, Mississippi, North Dakota and Wisconsin have all passed these kinds of requirements that are meant to drive abortion providers out of practice. And in those four states, they have been challenged and blocked so far. But there are a couple of other states where they're in effect. So what we have right now is really a patchwork across the country, where it seems to be that a woman's constitutional right to abortion depends on where she lives. And that's certainly not the promise of our Constitution and the way we understand rights to exist, so we're very, very concerned about that.

For more information on the National Women's Law Center, visit nwlc.org

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