Texas Bill Imposes Comprehensive Regulation on Abortions

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New legislation will impose restrictions on abortion clinics and physicians.

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The abortion bill the Texas Senate passed last week, despite state senator Wendy Davis’s filibuster efforts, has garnered extensive attention in the media.  But, how exactly will this legislation regulate abortion services in Texas once Governor Rick Perry signs the bill into law as expected?

One portion of the bill will outright prohibit abortions performed more than twenty weeks after fertilization.  Currently, Texas law bans abortions after twenty-four weeks.

The bill’s supporters in the legislature argued that moving the prohibition to earlier in a pregnancy is warranted by medical evidence showing that a fetus can experience pain as early as twenty weeks; however, the bill’s opponents pointed to some studies that dispute such a finding.  Once the abortion legislation is challenged in court, as it is expected to be, Texas will likely argue that it has a compelling state interest in protecting the unborn from pain, an entirely separate interest from the state’s interest in protecting the life of the unborn after the stage of viability.

On the other hand, the bill does provide at least one exception to its prohibition on abortions after twenty weeks.  A post-twenty week abortion will be permitted if complications from the pregnancy would create a serious risk of substantial and irreversible physical impairment or death for the pregnant woman.  Nonetheless, this exception will not apply if this risk is the result of a diagnosis that the woman will engage in behavior that may result in her substantial injury or death—that is, if she threatens to harm herself.

In addition to shifting the line when abortions will be prohibited, the bill will require an abortion facility to have the same minimum standards as an ambulatory surgical center.  These minimum standards under Section 243.01 of the Texas Health and Safety Code will impose procedural, operational, and physical requirements on abortion clinics.  For example, new obligations to meet specified building standards will force clinics to extend hallways, build larger recovery rooms, and install special airflow services.

Only five of the state’s forty-two abortion facilities currently meet the ambulatory surgical center standard, according to the bill’s opponents.  One clinic owner has said that the bill will give facility owners three options:  spend millions of dollars to comply with the law, relocate, or shut down.  Charlotte Taft, who runs a group which represents independent abortion providers, reportedly maintains that most clinics will not be able to afford these costs.

The bill also imposes certain obligations on physicians who perform abortion procedures.  Doctors who conduct abortions will need to have admitting privileges to a hospital located within thirty miles of the clinic which must provide obstetrical or gynecological health care services.  Opponents of the bill say that most hospitals will not grant these privileges to doctors who perform elective abortions.

Doctors will also need to be present when a pregnant woman ingests medication to induce an abortion.  The bill requires physicians to provide to the pregnant woman a telephone number where health personnel can be contacted twenty-four hours a day.

Under the new legislation, an abortion will be considered criminal if a doctor or an abortion clinic fails to meet the newly applied standards, subjecting both medical professionals and their employers to penalties.  A criminal abortion will be considered a class A misdemeanor subject to a fine of up to four thousand dollars.  Moreover, doctors who perform, attempt to perform, or aid and abet the performance or an attempt to perform a criminal abortion will be subject to the loss of their license to practice medicine.

With the imposition of these new restrictions, abortion providers fear what pregnant women will do to obtain a non-surgical abortion.  One doctor has explained that many women already misuse the drug Misoprostol to self-induce abortions; the number of women seeking to self-induce may increase.  Others have worried that some women will not even have safe access to medications to attempt to self-induce and will either flee to Mexico or turn to the black market to get the drug.

Other bill provisions address the privacy rights of a woman seeking or receiving an abortion.  The bill states that in civil or criminal procedures, the identity of the pregnant woman is not subject to public disclosure unless the woman consents.  However, a court will be able to order disclosure if a party files a motion, the court serves notice of a hearing to the woman, and, after a hearing and in camera review, the court determines that disclosure is necessary for justice and there is no reasonable alternative.

In an effort to guard the bill from court challenges, the Texas legislature included in the act sections on its construction and severability—that is, the ability to keep individual provisions intact if other provisions are invalidated.  According to the bill, a court is to construe bill provisions as consistent, to the maximum extent possible, with federal constitutional requirements.  Furthermore, the legislation will allow judges to reinterpret the bill’s text to save it from invalidation.  The bill states that the Supreme Court of Texas will provide the authoritative construction.

In an effort to address the Supreme Court’s 1996 holding in Leavitt v. Jane L.—which held severable a bill’s subsection because the text said the legislature intended each section to be severable—one of the provisions makes explicit that the Texas legislature aims for each provision and each application of the law to be severable.  The bill also states that if a section of the bill is later found to be unconstitutional, then any laws replaced by that section would come back into effect.

Governor Perry has argued that the bill is constitutional and is set to sign the bill today.