- The Washington Times - Monday, October 28, 2013

A federal judge Monday struck down a key part of Texas’ strict new abortion law that would have required abortion providers to have hospital-admitting privileges, but he declined to block a new rule on abortion-inducing drugs.

The decision was one of a string of court tests of new abortion restrictions passed by state legislatures around the country, in one of the most concerted challenges to the status of legal abortion since Roe v. Wade.

Plaintiffs argued that the hospital-admitting rule would effectively close about a third of the clinics in Texas and end abortion services entirely in the cities of Fort Worth, Harlingen, Killeen, Lubbock, McAllen and Waco. The ruling, which represents a partial defeat for both pro-choice and pro-life camps, will be appealed.

Even with the decision, however, a section of Texas’ new abortion law that blocks most procedures after 20 weeks into a pregnancy goes into effect Tuesday. The 20-week abortion ban was not challenged in court.

The Texas abortion statute was approved by the Republican-dominated Legislature in Austin this summer, but only after a delay sparked by a lengthy filibuster by Democratic state Sen. Wendy Davis. Ms. Davis, who attracted national attention with her action, is now running for governor.

Texas Gov. Rick Perry said Monday’s federal ruling “will not stop our ongoing efforts to protect life and ensure the women of our state aren’t exposed to any more of the abortion-mill horror stories that have made headlines recently. We will continue fighting to implement the laws passed by the duly elected officials of our state, laws that reflect the will and values of Texans.”

In his order, U.S. District Judge Lee Yeakel in Austin said the section of new law requiring abortion providers to have local hospital-admitting privileges “is without a rational basis and places a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”

His ruling joins other courts, including one in Mississippi, in blocking a requirement to have local admitting privileges.

Lawmakers and pro-life groups say the privileges are essential as women sometimes need emergency hospitalization during or after an abortion, and the patients need their doctors to be connected to the local health care system.

Pro-choice allies say abortion providers are often not full-time staff and cannot meet the admitting-privilege requirement; thus, the mandate requiring the privileges are “underhanded” efforts to close the clinics, said Nancy Northup, president of the Center for Reproductive Rights, whose lawyers are representing some of Texas abortion clinics in challenging the law.

In his ruling, Judge Yeakel said the lack of admitting privileges “is of no consequence” when a patient enters a hospital emergency room, and is not necessary for communication or timeliness of care. He struck it down as unconstitutional.

Texas Attorney General Greg Abbott’s office said Monday it would appeal the ruling.

Regarding “medication abortion,” however, Judge Yeakel declined to block a new provision that requires Texas abortion providers to follow the Food and Drug Administration’s protocol for dispensing mifepristone and misoprostol.

FDA rules require several visits, a doctor to administer the second dose, and restricts use of the drugs to no more than 49 days past a woman’s last menstrual period. The new Texas law is intended to require those safety features for women, argued attorneys for Mr. Abbott and other state officials.

Planned Parenthood and its allies countered that off-label use of mifepristone (also known as RU-486) is “the safest, most widely used and medically appropriate use,” and that the process is safe even when used up to 63 days after a woman’s last menstrual period.

Judge Yeakel, while agreeing that the FDA protocol rule was more burdensome than common practice, ruled that it was constitutional: “[T]he incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate” a law, Judge Yeakel wrote, citing the U.S. Supreme Court’s 1992 Casey decision.

Monday’s ruling stemmed from a lawsuit filed in September by abortion clinics. Judge Yeakel heard three days of testimony and arguments about the abortion law last week in Austin.

Meanwhile, on Tuesday, Texas plans to join several other states in banning most abortions past 20 weeks gestation due to a belief that fetuses can feel pain at that age. Some of these “fetal-pain” laws are blocked by courts, but others have been allowed to go into effect.

Another hotly contested section of the Texas law is not scheduled to go into effect until September 2014. It would require abortion clinics to meet the standards of ambulatory surgical facilities.

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