Texas AG Still Pretending HB 2 Was About Protecting Women’s Health

Texas AG Still Pretending HB 2 Was About Protecting Women’s Health June 29, 2016

After the Supreme Court struck down the two key TRAP provisions of Texas’ HB 2, Attorney General Ken Paxton was still trying to pretend that the law was about protecting women’s health rather than about denying them the right to reproductive choice.


“HB2 was an effort to improve minimum safety standards and ensure capable care for Texas women. It’s exceedingly unfortunate that the court has taken the ability to protect women’s health out of the hands of Texas citizens and their duly-elected representatives,” Paxton said in the statement.

But this claim is thoroughly refuted in the ruling itself. Neither the requirement of hospital admitting privileges or the requirement of meeting the regulations for outpatient surgical units did anything at all to protect women’s health. On the admitting requirements:

Returning to the District Court record, we note that, in direct testimony, the president of Nova Health Systems, implicitly relying on this general fact, pointed out that it would be difficult for doctors regularly
performing abortions at the El Paso clinic to obtain admitting privileges at nearby hospitals because “[d]uring the
past 10 years, over 17,000 abortion procedures were performed at the El Paso clinic [and n]ot a single one of those
patients had to be transferred to a hospital for emergency treatment, much less admitted to the hospital.” In a word, doctors would be unable to maintain admitting privileges or obtain those privileges for the future, because
the fact that abortions are so safe meant that providers were unlikely to have any patients to admit.

And on the outpatient surgical center requirements:

There is considerable evidence in the record supporting the District Court’s findings indicating that the statutory provision requiring all abortion facilities to meet all surgical center standards does not benefit patients and is not necessary. The District Court found that “risks are not appreciably lowered for patients who undergo abortions at ambulatory surgical centers as compared to nonsurgical center facilities.” The court added
that women “will not obtain better care or experience more frequent positive outcomes at an ambulatory surgical
center as compared to a previously licensed facility.” And these findings are well supported.

The record makes clear that the surgical-center requirement provides no benefit when complications arise in the context of an abortion produced through medication. That is because, in such a case, complications would almost
always arise only after the patient has left the facility. The record also contains evidence indicating that abortions taking place in an abortion facility are safe—indeed, safer than numerous procedures that take place outside hospitals and to which Texas does not apply its surgical-center requirements. The total number of deaths in Texas from abortions was five in the period from 2001 to 2012, or about one every two years (that is to
say, one out of about 120,000 to 144,000 abortions). Nationwide, childbirth is 14 times more likely than abortion to result in death, but Texas law allows a midwife to oversee childbirth in the patient’s own home. Colonoscopy, a procedure that typically takes place outside a hospital (or surgical center) setting, has a mortality rate
10 times higher than an abortion. Medical treatment after an incomplete miscarriage often involves a procedure identical to that involved in a nonmedical abortion, but it often takes place outside a hospital or surgical center. And Texas partly or wholly grandfathers (or waives in whole or in part the surgical-center requirement for) about two-thirds of the facilities to which the surgical-center standards apply. But it neither grandfathers
nor provides waivers for any of the facilities that perform abortions. These facts indicate that the surgical-center provision imposes “a requirement that simply is not based on differences” between abortion and other surgical procedures “that are reasonably related to” preserving women’s health, the asserted “purpos[e] of the Act in which it is found.”

We have found nothing in Texas’ record evidence that shows that, compared to prior law (which required a “working arrangement” with a doctor with admitting privileges), the new law advanced Texas’ legitimate interest in protecting women’s health.

We add that, when directly asked at oral argument whether Texas knew of a single instance in which the new
requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence
in the record of such a case.

That’s pretty much game, set and match. No one could seriously believe that this bill was about protecting women’s health. It was about shutting down abortion clinics to deny women the right to choose, plain and simple.

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