Texas abortion law temporarily back in effect

Photo by: Will Gentry

 

The recent decision by the United States Supreme Court concerning the Texas abortion laws has forced nearly one-third of the abortion clinics in the state to close due to new regulations.

The 5-4 vote left provisions in the law concerning distances that clinics are from hospitals, and the fact that doctors must have admitting privileges into the hospital to continue performing abortions. Associate Law Professor at the University of Central Oklahoma Marty Ludlum provided insight into the recent Supreme Court decision.

“The decision was a procedural decision,” Ludlum said. “Even though the case is pending at the appeals court, one of the parties jumped a step ahead and asked the U.S. Supreme Court to consider the case now, saying it was urgent and couldn’t wait for the appeals court, which is unusual.”

The jump forced the Supreme Court to slap the case down and follow procedure by following the traditional route of proceedings leading up to the Supreme Court.

“The Supreme Court pretty basically said, ‘No, [the case] is pending and you have a court date in January with the court of appeals and you need to go through the steps – first trial, appeals court, then the Supreme Court,’” Ludlow said.

The case is currently pending at the 5th U.S. Circuit Court of Appeals in New Orleans. The laws in Texas will remain effective until the appeals court decides the case. There are a number of problems the case may encounter, especially in light of some of the language used in the law.

“The part of the law that will be troublesome will be the language in the law that says the fetus feels pain, saying that after 20 weeks there is no abortion without exception,” Ludlow said. “That part of the law will face a lot of difficulty, and I’m not a medical person, but I’m not sure of the science if a fetus can feel pain.”

Another portion of the law that will face difficulty will be setting the timeframe for the abortion.

“I do know the science isn’t there to definitely say if a woman has been pregnant for 20 weeks as opposed to 21,” Ludlow said. “Especially when it absolutely makes a huge difference; 20 yes, 21 no, we have no way of doing it with that kind of specificity.”

The laws require doctors to have admitting privileges and according to Nicholas Jensen, Oklahoma Christian University sophomore, that portion of the law has good reason.

“I believe the precautions the law is taking to try and limit the impact of abortions on the woman’s body by requiring the abortion to be performed in a surgical facility is a good thing, especially in light of the Gosnell trial that happened in 2009 in Philadelphia,” Jensen said. “It is prudent to attempt to promote adequate healthcare in favor of accessible abortions.”

The Gosnell case in Philadelphia involved a Dr. Kermit Gosnell who was running an abortion clinic and not following many of the medical regulations, including conducting late-stage abortions, using un-sanitized equipment and often using unmeasured doses of drugs. More can be found on the Gosnell case online.

Another regulation set by the bill requires doctors to have admitting capabilities with a hospital.

“The other bill that is part of the legal discussion is requiring the doctors who want to perform an abortion to be screened to be able to admit patients into a local hospital,” Ludlow said. “I thought all doctors had all hospital privileges – every doctor I have been to has had admitting privileges. My friends in the medical community basically say that hospital privileges are a sign of competence and if the local medical community or local hospital doesn’t have faith in you, you went to mail-order medical school in the Bahamas or you have a drinking problem or whatever problem that they don’t allow you to have admitting privileges.”

This is emphasized by the Gosnell case because the abortion clinic had been reported numerous times and the overseeing agencies failed to shut the clinic down.

The bill also requires abortion clinics to be within 30 miles of a hospital.

“The nature of the procedures they do there have all kinds of complications,” Ludlow said. “Any time you put anyone under anesthetics, anything involving an invasive procedure, there is always a chance of infections or reactions to medicine, and I can’t imagine doing it where you are a long way from a hospital. The requirements for the clinic to be within distance of a local hospital will stand, but they will have to adjust the distance or number of miles that the clinic is from the hospital. In West Texas, 30 miles might not be the next grocery store – you are a long way from anything out there.”

The appeals court will hear the case in January, and it is likely the case will move to the Supreme Court again and at that time the Court may strike out – remove – some of the language in the bills.

There is also a possibility that other states may adopt laws similar to the one in Texas.

“I think other states will try and implement similar procedures, but the majority that would do that will wait until the Texas law plays out in court before implementing those laws to save themselves the trouble of a lawsuit,” Jensen said.

The dispute over the abortion laws may go on for some time, even if these laws pass.

“Abortion is such a powerful, emotional subject on both sides of the aisle that I think it will be difficult for either party to consent; both sides will continually push more or less regulation to help their side,” Jensen said. “We may end up seeing a stalemate for now, depending on how these cases resolve, but I do think that we will definitely see a routine debate over abortion.”