Texas abortion law should be upheld by the federal courts

The Texas State Legislature passed House Bill 2 on July 18, 2013, which imposes the following restrictions on abortions performed in the state of Texas:

  • A physician who performs an abortion in the state of Texas is required to have active admitting privileges at a hospital that provides gynecological or obstetric health care services within 30 miles of the clinic where the abortion is performed or induced.
  • The telephone number of the physician, other health care personnel employed by the physician, or the facility where the abortion was performed must be disclosed to the woman whom the abortion is performed on.
  • The name and telephone number of the nearest hospital to the home of the woman at which an emergency arising from the abortion would be treated must be disclosed to the woman whom the abortion is performed on.
  • The physician performing the abortion must determine the probable post-fertilization age of the unborn child being aborted prior to performing the abortion.
  • An abortion cannot be performed after 20 weeks post-fertilization unless the unborn child being aborted has been diagnosed with a severe fetal abnormality or the abortion is required to preserve the life of the mother or to substantial and irreversible physical impairment of a major bodily function of the mother.
  • The provision, prescription, or administration of an abortion-inducing drug must be in accordance with the guidelines approved by the Food and Drug Administration unless the provision, prescription, or administration of an inducing drug is in accordance with the clinical management guidelines defined by the American Congress of Obstetricians and Gynecologists Practice Bulletin as those guidelines existed on January 1, 2013.
  • Prior to the dispensation, prescription, or administration of an abortion-inducing drug, a physician must physically examine the pregnant woman and document in the woman’s medical record the gestational age and the intrauterine location of the pregnancy.
  • The physician who provides, prescribes, or administers an abortion-inducing drug must schedule a follow-up visit to occur within 14 days of the administration or use of the drug, and the physician is required to confirm that the pregnancy is completely terminated and to assess the degree of bleeding in that follow-up visit.
  • If the physician who provides, prescribes, or administers an abortion-inducing drug is aware of an serious adverse event arising from the abortion-using drug, the physician is required to report it to the Food and Drug Administration through the MedWatch Reporting System.
  • On and after September 1, 2014, the minimum standards for an abortion facility must be equivalent to the minimum standards required of ambulatory surgical centers.

Texas House Bill 2 should be upheld in its entirety by the federal courts because the regulations under this law are intended to protect pregnant women from the dangers of abortion procedures and to protect unborn children from being killed after viability. Over 400 women have died from abortions at legal abortion clinics and many post-abortive women have been harmed by abortions at legal abortion clinics since the Roe v. Wade and Doe v. Bolton cases, and the failure to uphold Texas HB2 will result in more harm to women who undergo abortions in Texas than if HB2 is upheld by the court.

Even though most of the provisions of HB2 do not pose an undue burden for abortion providers or the women who undergo abortions in Texas, the main provision of HB2 that is currently being challenged by the courts is the requirement for abortion facilities in the state of Texas to meet the minimum standards required by ambulatory surgical centers. This provision is being challenged because this provision has forced the closure of abortion clinics in Texas, because this provision has made it difficult for pregnant women to obtain abortions in Texas, and because it is difficult for most of the existing abortion facilities in Texas to comply with the new requirements of this provision.

Although Judge Yeakel ruled that HB2’s requirement that abortion clinics meet the minimum standards required of ambulatory surgical centers was imposed in order to close abortion clinics, the primary intent of this requirement was to increase the safety standards of abortion clinics in the state of Texas. As such, this requirement should be upheld and the existing abortion providers should be required to upgrade their existing clinics or relocate to clinics that meet the minimum standards provided under HB2. Additionally, even if this requirement makes it difficult for a pregnant woman to obtain an abortion in Texas or forces the closure of some of Texas’s abortion clinics, this requirement furthers the legitimate governmental interest of protecting the health of women who undergo abortions and helps protect women who are undergoing abortions from the dangers associated with unsanitary conditions at abortion clinics.

The vast majority of abortions that are performed at abortion clinics are performed for the purposes of getting rid of an unborn child who is unwanted by his or her mother, and the vast majority of pregnancies that are aborted could have been safely carried to term with proper medical care if these pregnancies were not aborted. As such, almost all of the abortions that are performed at abortion clinics are clearly elective to begin with. If the main issue at stake with the closure of abortion clinics resulting from HB 2 is really about access to assistance for women faced with unplanned pregnancies, then the state of Texas should be implementing programs that provide women who are in crisis pregnancies with the medical care and the assistance that they need to carry their pregnancies to term and to ensure that babies who are born as a result of unplanned pregnancies will be properly taken care of after birth. Increasing access to pro-life crisis pregnancy assistance for women who are faced with unplanned pregnancies will reduce the demand for abortions, protect pregnant women from the dangers associated with abortion procedures performed at legal abortion clinics, and save lives of unborn children who would otherwise be killed through abortion or infanticide.

Even though Judge Lee Yeakel struck down portions of HB 2 due to the loss of access to abortion that would occur as a result of abortion clinic closures in Texas, the United States Court of Appeals for the Fifth Circuit and the United States Supreme Court need to uphold HB 2, even if the law will lead to the closure of abortion clinics in Texas for several reasons. First, the requirements imposed on abortion clinics under HB 2 are primarily intended to protect women from the dangers associated with legal abortion procedures and to ensure that continuity of care is there in the event that a medical emergency arises from the complications of an abortion. Second, the failure to uphold HB 2 will pose a greater danger to pregnant women who undergo abortions in Texas than upholding HB 2 would. Third, the services that women would be losing access to as a result of the regulations imposed under HB 2 are in most cases clearly elective and medically unnecessary. Fourth, providing women who are in crisis pregnancies with easier access to prenatal care, obstetric care, and pro-life crisis pregnancy assistance will reduce the demand for abortions in Texas and will lessen the need to keep abortion clinics open in Texas. Finally, some women who are in crisis pregnancies are actually unwilling to have an abortion if access to abortion is not easily available.