Expert witnesses testified in federal court Monday that HB 2, Texas’ omnibus anti-abortion law, has negatively affected the ability of pregnant people who live in south and west Texas to access legal abortion care. It was the first day of a new legal challenge to the law, which was passed last summer after weeks of protest brought thousands of orange-shirted reproductive rights supporters to the state capitol and made state Sen. Wendy Davis a national name following a 13-hour filibuster.
“These regulations, burdens not imposed on any other medical providers in Texas, are not consistent with medical standards and they drastically reduce the number and geographical distribution of abortion providers,” said plaintiff’s counsel Jan Soifer, representing a number of Texas abortion providers located across the state, in her opening statement.
Experts for the plaintiffs testified on a variety of issues, from the economics and logistics of building ambulatory surgical centers for the provision of abortion care, to the challenges faced by Texans who cannot afford to drive to San Antonio, Austin, Dallas-Fort Worth, or Houston, where the only abortion-providing ambulatory surgical centers which provide abortion care will be located after all four prongs of HB 2 go into effect on September 1, barring an injunction from the federal court.
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But while the plaintiffs sought to demonstrate the negative impact of HB 2—forcing Texans in the Rio Grande Valley and in West Texas to travel hundreds of miles round-trip for legal abortion care—the state argued that any effect of the law was immaterial to the case as long as the legislators who passed the law had a “rational basis” for doing so.
Jimmy Blacklock, an assistant attorney general arguing for the State of Texas, said in court that the “rational basis” rule, as laid out by the Fifth Circuit Court of Appeals in New Orleans earlier this year, “makes most of the expert testimony completely irrelevant.”
As Rewire’s senior legal correspondent explained earlier this year, the “rational basis” bar means that all states need to do to uphold abortion restrictions is to “claim the proposed restriction is rationally related to its stated purpose.”
Last summer, lawmakers said that HB 2’s new regulations—which restrict medication abortions, ban abortion after 20 weeks, require abortion-providing doctors to have hospital admitting privileges at local hospitals, and mandate that abortion facilities operate as ambulatory surgical centers—were necessary to protect the health of people who seek legal abortion care in Texas.
Nevertheless, the plaintiffs laid groundwork for proving that HB 2 has imposed an undue burden on low-income Texans who cannot afford to travel to major cities to obtain legal abortion care and that abortion-providing doctors in Texas have been denied the hospital admitting privileges that the law requires, forcing abortion facilities in McAllen and El Paso to close their doors.
While the trial was expected to continue until Thursday, testimony moved more swiftly than predicted, as the State of Texas declined to go into in-depth cross-examination of the plaintiffs’ expert witnesses.
“I can only conclude that our experts are really strong,” said Amy Hagstrom Miller, whose Whole Woman’s Health group of abortion providers is one of the plaintiffs in the case. In the wake of HB 2, Hagstrom Miller has closed three of her five Texas clinics, in Austin, Beaumont, and McAllen.
Lucy Felix, a state-licensed promotora who works as a liaison between women in the Rio Grande Valley and health-care providers, testified through a translator that the women she works with in the Valley often do not have the resources to find child care for existing children, ability to take time off work to travel two separate times to a central or east Texas abortion provider, or to travel hundreds of miles in search of legal abortion care.
But state attorneys did question her experience, asking her if she was a doctor or a scientist who had conducted empirical research on the impact of HB 2, or whether she had a postgraduate degree. Instead, she spoke of her education in Mexico and current work talking directly with women who live in the Valley.
“I feel like they really didn’t respect [Felix’s] expertise,” Hagstrom Miller told Rewire after Monday’s hearing.
Another expert, Dr. Elizabeth Raymond of Gynuity Health Projects in New York City, testified to the overall safety of legal abortion, saying that her research has found that there are 27 maternal fatalities for every 100,000 live births, compared to just .27 fatalities per 100,000 legal abortion procedures. She likened the safety of abortion care to that of colonoscopy procedures.
An architectural expert and an economics researcher testified that ambulatory surgical centers can be a costly endeavor for abortion providers, requiring an investment of at least $1 million and up to more than $3 million, depending on the extent of construction and renovation involved in converting existing abortion facilities.
George Johannes, a Missouri architect who has designed a number of abortion facilities in Virginia and Michigan, testified that it was unusual, in his experience, for states not to include a provision that would “grandfather” existing facilities into exemptions to new regulations, though Texas provides no such provision in HB 2’s language. He estimated that it would cost $2.4 million for the 3,400 square-foot Austin Whole Woman’s Health facility to expand into a 7,000 square-foot ambulatory surgical center.
Plaintiffs’ expert testimony is expected to continue Tuesday morning, while the State of Texas is expected to bring its expert defense witnesses to the stand on Wednesday. The trial could conclude by the end of this week, and Judge Lee Yeakel is expected to issue an opinion before the HB 2’s ASC provision goes into effect on September 1. Ultimately, however, legal experts told Rewire that the law will likely make its way to the Supreme Court.