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Amy Hagstrom Miller

Omnibus lawsuit against Texas abortion laws begins

Gotta say, I’m less optimistic about this now than I was when it was filed.

State attorneys and lawyers representing reproductive rights groups argued in federal court Monday over whether a sweeping lawsuit challenging more than 60 Texas abortion regulations should move forward.

U.S. District Judge Lee Yeakel told state attorneys that their 73-page argument confused him. He also expressed confusion about what reproductive rights groups were arguing over.

“This needs to be something not that the court understands but the public understands,” Yeakel said. “I find this case difficult to understand with the status of the record.”

[…]

Stephanie Toti, senior counsel at the Lawyering Project and lead attorney for the reproductive rights groups in the case, said during the hearing that “once upon a time, Texas started off with a reasonable regime to regulate the system of abortion.”

“The system has become so burdensome that it’s increasingly difficult for patients and providers to navigate,” Toti said.

Reproductive rights groups also argue that the state’s “A Woman’s Right to Know” booklet for patients is medically inaccurate. The suit targets a University of Texas System policy barring students from getting credit for internships and field placements at institutions that provide access to abortions.

Amy Hagstrom Miller, president and CEO of Whole Woman’s Health Alliance, said in a news release that the organization is “proud to lead another legal challenge in Texas.”

See here for the background. As the story notes, this lawsuit was filed in June, with the main argument being that the Whole Women’s Health SCOTUS ruling of 2016 made a bunch of previously-passed laws illegal as well. It seemed like a great idea at the time, right up until Anthony Kennedy decided to hang up his robe. Be that as it may, the hope here is to get at least a partial injunction from the district court, and see where we go from there. For that, we’ll have to wait on Judge Yeakel. The Chron has more.

Omnibus lawsuit against anti-abortion laws

Talk about going big.

Two years after the U.S. Supreme Court overturned major provisions of Texas’ omnibus House Bill 2, abortion rights groups want to use that decision to take down years’ worth of anti-abortion legislation, before the court makeup changes. In a 5-3 decision, the justices determined that provisions of the 2013 law didn’t provide “medical benefits sufficient to justify the burdens upon access that each imposes.” Emboldened by the ruling, abortion providers went through years of Texas regulations to determine others that could be challenged under the same health and safety standard, leading to the lawsuit filed against the attorney general, state health department, and others.

“I think of this as an omnibus repeal,” said Amy Hagstrom Miller, president of Whole Woman’s Health Alliance, the lead plaintiff in the HB 2 case and the new lawsuit. “There’s a new standard, and we can look at it to challenge a bunch of things at once.”

The lawsuit, which Hagstrom Miller calls “the big fix,” is far-reaching. Filed in federal district court in Austin, it challenges a parental notification law from 1999 and abortion reporting requirements from 2017. It takes issue with the state’s ultrasound requirement, mandatory waiting period, parental consent requirement, restrictions on medication abortion and telehealth services, provider licensing laws and more than 20 other restrictions.

[…]

Work began on the new lawsuit not long after the HB 2 decision. Last May, Hagstrom Miller hinted at litigation, saying at the reopening of her Austin clinic that “we have the opportunity to try to get some other things fixed by the Supreme Court before the makeup changes — if the makeup changes.” She had already started brainstorming this lawsuit, holding meetings with providers and scribbling regulations to tackle on whiteboards, she told the Observer on Wednesday.

The new challenge comes as conservative lawmakers around the country are aggressively pushing anti-abortion legislation. One bill proposed during the last session of the Texas Legislature would have criminalized abortion and charged women and providers with murder. The Legislature passed a measure that bans the most common form of second-trimester abortion, and another that requires the burial or cremation of fetal remains after abortions and miscarriages. Both are currently blocked, but some anti-abortion advocates hope to push the former to the Supreme Court.

The Trib lists the plaintiffs: the Whole Woman’s Health Alliance, the Afiya Center, Fund Texas Choice, the Lilith Fund, the Texas Equal Access Fund, the West Fund and Dr. Bhavik Kumar, who serves as medical director of the Whole Woman’s Health Alliance clinic. I can imagine them scoring at least a significant partial win in district court, then running into significant resistance from the Fifth Circuit – basically, exactly what happened with the lawsuit against HB2 – and after that who knows. It’s a bold strategy and has the potential for a lot of good, but as with any bold strategy there’s risk as well. Needless to say, I wish them all the best. A press release from the West Fund is here, and the Chron and Texas Monthly have more.

Winning the battles but losing the war

That’s the story of reproductive rights, and access to reproductive health care in general, in Texas.

Right there with them

“We have made tremendous gains,” said Joe Pojman, executive director of the Texas Alliance for Life. He hopes that someday, perhaps under Trump, the Supreme Court will overturn the Roe v. Wade ruling upholding abortion rights. In the meantime, when he surveys abortion trends in Texas, he sees “huge progress.”

Abortion rights advocates ruefully agree they have lost ground.

“What makes Texas unique is that the clinic system was undercut so quickly,” said Elizabeth Nash, senior state issues manager at the Guttmacher Institute, a reproductive rights research group. “Texas has taken what might have happened in a decade or more in another state and collapsed it into a year.”

Texas has “eroded the fabric of care once in place to serve women and make the current landscape extremely difficult to navigate,” Whole Women’s Health CEO Amy Hagstrom Miller wrote in an email. “As a result of these laws, there are fewer abortion providers in the state and many women have to travel hundreds of miles to receive care.”

Whole Woman’s Health had five clinics in the state a few years ago. After Texas imposed new restrictions, the group shuttered two and decided to challenge the law in court. One clinic is finally set to reopen in Austin in the next couple of weeks. The other, in Beaumont on the Gulf Coast, will remain closed

[…]

More than half the clinics and abortion facilities in the state had already shut down. Just 17 abortion facilities remained in six counties — down from 41 centers in 17 counties in 2012, according to the Texas Policy Evaluation Project, a university group that tracks legislation’s impact on reproductive rights.

About half of the Planned Parenthood clinics in the state are among those that have closed. The clinics that are still open face new restrictions and onerous administrative requirements for them and their patients. Women seeking abortion services face travel distances that have increased by four times over the past few years, according to the Texas Policy Evaluation Project.

A few abortion providers are making plans to re-open: Northpark Medical Group in Dallas started performing abortions again in February after a three-year hiatus. Planned Parenthood will reopen its clinic in Waco by the summer. And Whole Woman’s Health, the Supreme Court plaintiff, will reopen soon in Austin.

But access is unlikely to get back to where it was. Planned Parenthood has no plans to re-open its six shuttered clinics, though it has also resumed services at its San Antonio clinic in 2015. That’s the closest clinic for a woman in the Lower Rio Grande Valley — 250 miles away.

Read the whole depressing thing. I’ve said it before and I’ll say it again, nothing will change until we change who gets elected. There’s a bottomless appetite for bills to restrict abortion in any number of crazy ways, and while they can sometimes be defeated in court, they do a lot of damage in the meantime and cost a bunch of money to litigate away. The only way to stop this is going to be to have a Legislature that doesn’t pass these bills and/or a Governor who will veto them. Nothing will change until that happens.

“Fetal remains” rule blocked

Good.

U.S. District Court Judge Sam Sparks ruled Texas cannot require health providers to bury or cremate fetuses, delivering another blow to state leaders in the reproductive rights debate.

On Friday afternoon, Sparks wrote in his ruling that Texas Department of State Health Services’ fetal remains burial rule’s vagueness, undue burden and potential for irreparable harm were factors in his decision. He also wrote that the state had proposed the new rule “before the ink on the Supreme Court’s opinion in Whole Woman’s Health was dry.”

“The lack of clarity in the Amendments inviting such interpretation allows DSHS to exercise arbitrary, and potentially discriminatory, enforcement on an issue connected to abortion and therefore sensitive and hotly contested,” Sparks said.

[…]

During two public hearings, department leaders heard stories of abortions, miscarriages, and general grief over losing a baby. While anti-abortion groups argued that the rule was a means to bring human dignity to the fetuses, reproductive rights advocates said the rule was another way for Texas to punish women who chose an abortion, saying the cost of the burials would be passed on to patients, making abortions harder to obtain for low-income Texans.

During multi-day court hearings earlier this month, state attorneys said the rule was designed to provide aborted or miscarried fetuses a better resting place than a landfill. They also argued that there would be no cost for patients to worry about and only miniscule costs for providers. The state also said that there were multiple groups willing to help with costs.

But Center for Reproductive Rights lawyers argued the rule had no public health merits and no clear directions on how it would work for providers. Providers who testified noted it was unclear if they would be on the hook for fines and disciplinary action from Texas if the nonprofit groups mishandled the fetuses. They also said separating fetuses away from other medical waste would likely mean an uptick in costs for transportation and new disposal procedures.

Sparks expressed frustration throughout the court proceedings that neither side could provide a firm estimate of the costs of implementing the rule. He also, one point, agreed with Center for Reproductive Rights attorneys’ argument that there would be no public health benefits.

In his ruling, Sparks wrote that the department’s estimates don’t know “the true impact” of the rule and that their “simple math” is “unsupported by research and relies heavily on assumptions.”

See here, here, and here for the background, and here for a copy of the order; the full order is here. Note that this is just an injunction pending the actual lawsuit to overturn the ruling. The injunction strongly suggests that Judge Sparks thinks the plaintiffs will prevail, but that matter has not been decided yet. Now a trial date will be set and we will proceed from there, while the state will pursue an appeal to rescind the injunction and allow the rule, which had been scheduled to take effect on Friday, to be put in place for the duration of the trial.

Republicans like Ken Paxton are predictably gnashing their teeth about this, but if this rule was so important for the sanctity of life and dignity of the mothers and whatever else, then why wasn’t it proposed earlier than last year in the immediate wake of the HB2 ruling? Rick Perry could have proposed this a decade or more ago. Greg Abbott could have proposed it in 2015. If it was so damn important, why did they wait so long? Who had even heard of such a thing before last year? The timing of the rule gives the show away. It deserves the fate it got from Judge Sparks. A press release from the Center for Reproductive Rights is here, and the Chron, the Statesman, the Current, and the Austin Chronicle have more.

“Fetal remains” rule still on hold

Take all the time you need.

As he considers a final ruling on the state’s fetal remains burial rule, U.S. District Court Judge Sam Sparks is delaying the start date of the rule for at least another three weeks.

On Wednesday afternoon, after attorneys for the state of Texas and the Center for Reproductive Rights made their closing remarks, Sparks said he would need more time to review evidence and witness testimony before making a final ruling about the state’s effort to require medical providers to bury or cremate aborted fetuses. The Texas Department of State Health Services had originally scheduled the rule to go into effect Dec. 19.

[…]

For the state, Sparks said he wanted further explanation on the logic behind barring providers from incinerating fetal remains, a medical waste procedure the state has long allowed. He also wanted direction on why the state’s rule should not be viewed as a political statement. He said he did not “think there’s any question” that there isn’t public health benefit to the proposed rule.

“There’s no health benefit, there’s no health problem, there was no problem to be fixed and it’s for the dignity of the fetus or however you want to describe it,” Sparks told state’s attorneys. “I think all life matters and needs dignity but that’s not the point…the point is just as I asked opposing counsel: ‘what is the thought of taking the majority of disposal out?'”

Sparks told attorneys with the Center for Reproductive Rights that he wanted them to identify from their evidence and witness testimony how the rule is unconstitutional and how it would create a burden for women.

Sparks said neither side had made headway on establishing how provider’s costs would be impacted if the rule were implemented.

See here and here for the background. This was a two-day hearing – here’s the Trib story from Day One.

Attorneys for the Center for Reproductive Rights, which sued to stop the rule, called witnesses at Tuesday’s hearing who continuously expressed that the rule is “vague,” doesn’t give enough clarity for medical providers and has no public health benefits.

Amy Hagstrom Miller, founder and CEO of Whole Woman’s Health, the main plaintiff in the case, said on the stand that the rule was “discriminatory” and “offensive.” She said while groups like the Texas Conference of Catholic Bishops have stepped up to take on the cost of cremations and burials, the rule is unclear about who would be responsible for making sure the remains are properly disposed of. She said that vagueness puts providers in a vulnerable position where they could face fines or disciplinary actions by the state if those non-medical groups do something wrong. Also troubling, Miller said, is that it’s difficult for abortion providers to keep a steady roster of medical waste vendors due to alleged harassment from anti-abortion groups.

“It’s confusing for most of us to figure what a clear path would be to compliance,” Miller said. “I find words like ‘interment’ and ‘incineration’ and ‘cremation’ and ‘funeral’ are really confused and used intermittently in a way that is difficult for us to understand and difficult for the public to understand.”

The Statesman notes that the Ag had a bit of a rough time on Tuesday.

U.S. District Judge Sam Sparks abruptly halted a hearing on the constitutionality of the rule and ordered state lawyers to appear in his Austin courtroom, with answers, at 8:30 a.m. Wednesday — a half-hour before the hearing was set to continue for a second and final day.

Visibly frustrated, Sparks said it appeared that the rule, drafted by state health officials and praised by Republican leaders for prohibiting fetal remains from being deposited in sanitary landfills, appeared to improperly countermand a state law allowing cremated ashes to be scattered over any private property with the owner’s consent.

“I want the state to give me answers about how one regulation can overrule another state statute,” the judge said.

[…]

The lead lawyer for the state, John Langley with the attorney general’s office, challenged both abortion providers by repeatedly pointing out that “the rules don’t regulate women at all,” but instead require health care centers to ensure that fetal tissue is properly buried or cremated. Nor does the rule impose funeral requirements on women because it doesn’t require individual burials for each fetus, he said.

Langley also argued that concerns about increased costs were overblown, pointing out that the abortion providers’ own economist estimated that the new rule would add only 54 cents to $1.56 in costs per abortion.

However, economist Anne Layne-Farrar testified that the anticipated cost was based on an estimate provided by the only crematorium that appeared willing and able to handle fetal tissue at a feasible cost. The Dallas-area crematorium, however, is unlikely to be able to handle medical waste from all Texas abortion facilities, let alone from doctor’s offices that provide miscarriage care, she said.

Layne-Farrar also said it was risky to rely on one vendor that, if lost, would force abortion providers to turn to funeral homes that would likely charge $500 to $700 per cremation.

When a lawyer for Texas suggested that clinics could save money by cremating several weeks’ worth of fetal tissue at a time, Layne-Farrar said most of the 11 funeral homes contacted for her study said ethical considerations prohibited them from cremating or burying more than one body at a time.

Does any of that give you confidence that this was something other than a hastily-decreed retaliation for the SCOTUS HB2 ruling from last year? I mean, come on. Judge Sparks had previously been expected to rule on Friday, but clearly we’re going to have to wait a little longer than that. The Chron and the Austin Chronicle have more.

“Fetal remains” rule put on hold

Good.

A federal judge has delayed Texas’ fetal remains burial rule until Jan. 6.

Judge Sam Sparks ruled Thursday afternoon that the Texas Department of State Health Services would have to push back its start date for requiring health providers to bury or cremate aborted fetuses. The agency had originally slated the rule to go into effect Dec. 19.

Under the rule, Texas health providers are forbidden from disposing of fetal remains in sanitary landfills, regardless of gestation period.

Sparks said each side would get about five hours for a hearing on Jan. 3-4 to make their cases. He said there would likely be a decision on Jan. 6.

See here for the background. The state argued that there is “no increase in costs to health care providers and patients”, which is only true if the funeral homes that had been disposing of remains pro bono in the past do not pass along the significant costs that this rule imposes on them.

The Austin Chronicle adds some details.

Sparks appeared far more confrontational toward state defendants, commenting that Texas must show reasons for implementing the rule other than “political” ones. He also cast ample skepticism on the state’s timing of the rule – filed just four days after their loss in the House Bill 2 case at the U.S. Supreme Court – calling it “curious,” more than once. In a moment of commentary, Sparks said the war against abortion rights is raging “quicker and meaner” than it has in the last 40 years.

State assistant attorney John Langley defended the rule as a “modest step” to protect the unborn, but failed to give evidence of its public health benefit. He argued that the rule in “no way regulates a woman’s right to choose” or places an imposition on clinics. Revealing the intention of the anti-choice regulation, Langley was unable to answer how the rule practically advances a health and safety interest – the very objectives the state health department is tasked with. When asked about how the rule prevents the spread of disease and protects health, the attorney called it a “side issue” to the real goal: Protecting the “dignity” of the unborn. “I acknowledge I don’t have a satisfactory answer, your honor,” said Langley.

Following the hearing, CRR’s Brown called the state’s inability to provide a health rationale “remarkable” and more evidence that the rule is meant to “disrespect” abortion-seeking women. “This rule is really intended to send a message to the Supreme Court that Texas is defying them,” said Brown.

When Langley objected to the temporary restraining order, an agitated Sparks noted that “this is the first time the state of Texas has ever said it was going to go ahead [with a rule] when there’s a suit of substance before the federal court,” and before full trial arguments were heard. “I’m going to remember that.”

Perhaps a contempt charge might be in order, if it comes to that. I mean, look, if this rule is so necessary, then why did it take the state so long to implement it? It didn’t require legislative intervention, just a word from the Governor to State Health Services. Rick Perry could have done this. Greg Abbott could have done it in 2015. Heck, Dubya could have done it. Why did it not happen until shortly after the Whole Women’s Health ruling? The question answers itself. Trail Blazers, the Current, the Press, and the Chron have more.

“Fetal remains” lawsuit filed

As expected.

Today the Center for Reproductive Rights filed new litigation against the state of Texas over unconstitutional new regulations that mandate the burial or cremation of embryonic and fetal tissue that results from abortions, miscarriages, or ectopic pregnancy surgery – regardless of the woman’s personal wishes or beliefs.

The politically-motivated rules are designed to restrict a woman’s right to access safe and legal abortion by increasing both the cost of reproductive health care services and the shame and stigma surrounding abortion and pregnancy loss.

The lawsuit demands that the state halt implementation of regulations finalized late last month by the Texas Department of State Health Services (DSHS). The final rules disregard widespread objection from medical organizations, legal experts and others who argue that these unconstitutional new restrictions offer no public health or safety benefit.

The regulations – first proposed just four days after the U.S. Supreme Court’s historic Whole Woman’s Health v. Hellerstedt decision in June – are in direct defiance of the high court’s ruling, which held that restrictions on legal abortion cannot impose burdens on a woman’s right to access abortion care without providing any legitimate, medical benefit.

Said Nancy Northup, President and CEO of the Center for Reproductive Rights:

“These regulations are an insult to Texas women, the rule of law and the U.S. Supreme Court, which declared less than six months ago that medically unnecessary restrictions on abortion access are unconstitutional.

“These insidious regulations are a new low in Texas’ long history of denying women the respect that they deserve to make their own decision about their lives and their healthcare.  

“The Center for Reproductive Rights will continue to fight for Texas women, and women across the nation, to ensure their rights are protected.”

Said Amy Hagstrom-Miller, president and CEO of Whole Woman’s Health, lead plaintiff in the case:

“Texas’ profound disrespect of women’s health and dignity apparently has no bounds with this new regulation announced just days after our June victory in the Supreme Court. This latest attack is an end run game to add restrictions on abortion care and it ignores thousands of Texan’s testimony and comments.

“We at Whole Woman’s Health have a history of fighting restrictions that are deeply rooted in shaming and stigmatizing Texans and today’s filing is no different. We will not stand for Texas putting more undue burdens on women and families who deserve the safe and compassionate abortion care that we provide at Whole Woman’s Health.”

Today’s lawsuit was filed by David Brown and Molly Duane of the Center for Reproductive Rights, Austin attorneys Jan Soifer and Patrick O’Connell of the law firm O’Connell & Soifer, and J. Alexander Lawrence of the law firm Morrison & Foerster in the U.S. District Court for the Western District of Texas on behalf of Whole Woman’s Health, Brookside Women’s Health Center and Austin Women’s Health Center, Alamo Women’s Reproductive Services, Reproductive Services and Dr. Lendol Davis.

The regulations are part of an ongoing attack across the country to restrict access to legal abortion through unnecessary regulations that endanger women’s health and safety. State legislators have passed more than 330 new restrictions on abortion access in the last five years alone.

The new litigation comes as Texas faces a $4.5 million legal bill over its defense of the sham clinic shutdown laws struck down by the Supreme Court in Whole Woman’s Health v. Hellerstedt.

See here and here for the background. As I said before, I expect the plaintiffs will be able to get an injunction at the district court level, but after that anything can happen. I will of course be keeping an eye on it. The Trib, the Austin Chronicle, the Current, the Chron, and Trail Blazers have more.

“Fetal remains” lawsuit in the works

Get ready.

Health providers and abortion clinics have less than two weeks to figure out how to comply with Texas’ new fetal remains rules — that is, if a lawsuit doesn’t halt the process first.

Amy Hagstrom Miller, founder of abortion provider Whole Woman’s Health, said she is working with the Center for Reproductive Rights on a potential lawsuit opposing the rules. Any lawsuit would need to be filed next week because the rules are set to take effect Dec. 19.

“Here we are, with a situation where Texas is trying to restrict access to safe abortion care by any means necessary,” she said. “It’s really cruel.”

[…]

Health care entities haven’t said how they will comply. Hagstrom Miller, one of the plaintiffs in the Supreme Court abortion case, said that she is still working on a path to compliance but that Whole Woman’s Health is first trying to determine what the rules would entail.

“The regulations as written are very confusing,” she said. “We’re trying to figure out exactly what the law requires.”

See here for the background. I feel reasonably confident that an injunction can be had in district court. What happens after that, with the Fifth Circuit and SCOTUS, is anyone’s guess. But the Center for Reproductive Rights (who you should totally support) won before, and I have faith they can win again. It’s just a damn shame they have to.

Clinics consider reopening

There’s a lot of uncertainty in the decisionmaking process, that’s for sure.

Abortion providers cheered a move by the U.S. Supreme Court to temporarily block part of a Texas law that would have closed more than half the state’s 19 remaining abortion clinics. Now they are studying whether it could also allow them to reopen some previously shuttered facilities and whether that would even be feasible.

“We may have gotten more than we even asked for,” said Amy Hagstrom Miller, chief executive of Whole Woman’s Health, which sued to overturn the law. But she cautioned that reopening clinics would be expensive and difficult, not just “a turn of the key and turn on the lights.”

Meanwhile, anti-abortion advocates insisted Monday’s ruling, while at least a short-term victory for abortion providers, isn’t as sweeping as those groups hope.

Both sides agree the two-paragraph order blocks a requirement that would mandate abortion facilities be constructed like surgical centers. It was the final major component of the 2013 law set to take effect.

Abortion providers also said they were analyzing whether the order goes further and temporarily wipes out an additional requirement that abortion doctors have admitting privileges at local hospitals.

[…]

Without the Monday ruling, the state would have had no clinic west of San Antonio. Only one would have been able to operate on a limited basis in McAllen in the Rio Grande Valley.

Stephanie Toti, a lawyer for the Center for Reproductive Rights who is representing the clinics, said some clinics that had previously closed might be able to reopen.

“We are hopeful,” Toti said. “But some of those clinics have been closed for so long.”

See here for the background. Reopening a clinic that had been closed would require money, hiring or rehiring staff, and applying for a state license, among other things. This may be one of those other things.

Texas doctors performing abortions must still obtain admitting privileges at nearby hospitals despite a recent U.S. Supreme Court decision, Carrie Williams, a spokeswoman for the Texas Department of State Health Services, said on Thursday.

The department’s statement comes days after the Supreme Court put on hold an appellate court’s ruling that would have closed at least 10 abortion facilities. Abortion restrictions passed by the Texas Legislature in 2013 — and set to go into effect Wednesday — would have required Texas’ abortion facilities to meet hospital-like standards, including minimum sizes for rooms and doorways, pipelines for anesthesia and other modifications.

Attorneys for the abortion providers had said the high court’s order also blocked the state from enforcing a separate provision of the law that requires doctors who perform abortions to have admitting privileges at a hospital within 30 miles of an abortion clinic. The Supreme Court restored a lower court’s ruling striking down both provisions of the law statewide, the attorneys said.

But on Thursday, Williams said the Supreme Court’s intervention only suspended the provision requiring hospital-like standards. Only some doctors at two clinics — Whole Woman’s Health in McAllen and Reproductive Services in El Paso — are exempt from the admitting privileges requirement, Williams said. (The El Paso clinic has been closed for months.)

In light of the health department’s statement, Stephanie Toti with the New York-based Center for Reproductive Rights, which brought the lawsuit on behalf of Texas abortion providers, said it is “studying the Supreme Court’s order to determine its impact.”

“We are hopeful that it may allow some of the clinics that had been previously closed due to the state’s admitting privileges requirements to reopen,” Toti said in a statement.

I have no clue what the effect of that may be. Beyond that, there’s no guarantee that the clinics would be able to stay open for more than a few months – while the expectation is that SCOTUS will hear the HB2 appeal, if they choose not to then the law goes into effect as soon as they make that decision, which would be in the fall. I don’t know what the licensing entails, but I doubt the state would feel any incentive to be very responsive about it. I don’t think fundraising to cover costs will be a problem, and I suspect there will be enough people dedicated to the cause to enable the clinics to be properly staffed, but these things take time as well. I hope they go forward, but I definitely understand if they are reluctant to do so. Daily Kos has more.

HHSC publishes rules relating to HB2

HHSC is all in on the omnibus anti-abortion bill passed during the special session this summer.

Texas health officials have a message for the more than 19,000 folks who wrote in to oppose new abortion regulations: Each individual commenter failed to show that clinics will close or that women will face an undue burden under the rules.

In what amounts to a robust defense of Texas’ sweeping new abortion law, the state Health and Human Services Commission is set to publish responses to the crush of public comments it received while wrapping up the last set of regulations for House Bill 2.

Final rules go live Friday in the Texas Register to spell out how the state will implement a portion of the law that requires clinics to meet the standards of ambulatory surgical centers. That document will contain a 16-page preamble to directly address the 19,000-plus commenters who asked regulators to amend the rules to prevent potential widespread clinic closures by carving out waivers for existing facilities

As expected, however, the commission earlier this month gave its blessing to a set of final rules that ignored those requests and instead adhered strictly to legislative intent.

In the document, state health officials argue the new standards will improve patient safety and said the rules are not intended to punish abortion clinics and do not “pose a substantial obstacle to a woman who seeks an abortion in Texas.”

The agency also pointed a finger back at the people who wrote in, saying individual commenters failed to produce even a shred of evidence proving the new rules would cause an undue burden for women seeking an abortion.

“The department is aware of no comments that explain how particular abortion-seeking patients will face unconstitutionally long travel distances, unconstitutionally long wait times, or unconstitutionally high costs for abortion services in any particular part of the state,” according to a copy of the final rules obtained by the Express-News.

The rules are here. It takes a special kind of willfulness to refuse to see any harmful effects of this dangerous and unnecessary legislation, but then these people are Rick Perry appointees, so they’re just doing their jobs. This story only reports on what HHSC was doing, so we go to this Trib story to hear from the folks on the sharp end of HHSC’s antics.

Amy Hagstrom Miller, executive director of Whole Woman’s Health, which operates five abortion clinics in Texas, called the department’s claim that it doesn’t know of any abortion clinics that have closed or will close “preposterous.” She emphasized that the new restrictions have already caused abortion facilities in the Rio Grande Valley, Killeen and Waco to stop performing abortions, leaving thousands of women without access to care.

“Women can still decide to terminate a pregnancy, but thousands of them can no longer actually access safe, professional medical care to receive that termination,” Miller said in an email to the Tribune. “A right is meaningless if you cannot act on it. Without providers, the right to an abortion is an abstraction that does not exist for thousands of Texan women.”

Abortion providers in Texas have challenged the constitutionality of two laws that took effect in November: the admitting-privileges rule and another requiring doctors to follow federal guidelines — rather than a common, evidence-based protocol — when administering drug-induced abortions. The rules finalized on Friday also require abortion facilities to meet the same standards as ambulatory surgical centers starting in September.

Although six abortion facilities already qualify as ambulatory surgical centers, only three of them currently have a physician on staff with hospital admitting privileges. The department wrote in the rules that it’s aware of three ambulatory surgical facilities that abortion providers plan to open in Dallas, San Antonio and Houston by September.

[…]

As the case moves through the courts, roughly a third of abortion providers operating in Texas have discontinued abortion services because they do not have a physician with hospital admitting privileges. Some facilities that discontinued services when the law first took effect now have physicians who have obtained hospital admitting privileges, such as the Whole Woman’s Health facility in Fort Worth.

Planned Parenthood was forced to stop performing abortions at four facilities in Texas when the new law took effect in November because those facilities do not have physicians with such privileges. Planned Parenthood facilities that offered abortions in Bryan, Midland and San Angelo have also recently closed.

Although the finalization of the new rules are a “deeply troubling development,” said Sarah Wheat, vice president of community affairs for Planned Parenthood of Greater Texas, the organization would continue to evaluate its options and take steps to secure women’s access to health services.

“These restrictions will do nothing to protect women’s health and safety, which is why doctors and leading medical groups — as well as thousands of Texans — opposed them,” Wheat said in a statement. “By cutting off access to safe, high-quality medical care, these restrictions will endanger women’s health and safety.”

I suppose one could claim there’s a difference between closing down a clinic that provided abortion services and simply forcing that clinic to stop providing those services, but I daresay it’s a distinction that would be lost on the women who no longer have access to those services. It also rather egregiously ignores the stated intent of Rick Perry, Dan Patrick, and a huge swath of other Republican elected officials, which is to outlaw abortion in Texas, if not in the actual statutes then in the effect of them. If HB2 doesn’t fulfill that goal, then I guarantee you they’ll be back with another bill next session. There’s no end game here – if they succeed at making abortion illegal or impossible, they’ll move on to closing down Planned Parenthood or restricting access to birth control or something else. There will always be something next on their list.

The one thing that won’t be on their list is working to improve health care for women. They claim that that was that goal of HB2, but an amicus brief filed by the American Medical Association and the American College of Gynecologists on behalf of the plaintiffs in the federal lawsuit against HB2 puts the lie to that. From the brief these medical groups filed:

H.B. 2 does not serve the health of women in Texas, but instead jeopardizes women’s health by restricting access to abortion providers and denying women well-researched, safe, evidence-based, and proven protocols for the provision of medical abortion.

[…]

The privileges requirement imposed by H.B. 2 does nothing to enhance the safety of, or healthcare provided to, women in Texas. There is no medically sound reason for Texas to impose a more stringent requirement on facilities in which abortions are performed than it does on facilities that perform other procedures that carry similar, or even greater, risks. Therefore, there is no medically sound basis for H.B. 2’s privileges requirement.

You can see the full brief here (PDF), or click the BOR link above for the highlights. The full appeal of HB2 before the Fifth Circuit is one of many high-profile lawsuits that will be heard beginning next week. There’s still a lot of this story to be told.