U.S. District Judge Lee Yeakel acknowledged Wednesday that the answer was not immediately obvious to him but promised to rule as quickly as possible.
"I recognize the clock is ticking toward Oct. 29," Yeakel said after opposing lawyers made their closing arguments in his Austin courtroom.
Janet Crepps, a lawyer with the Center for Reproductive Rights in New York, argued that unless Yeakel blocks two key provisions of the law, 40 percent of the state's abortion clinics will have to stop performing the procedure next week, leaving 22,800 Texas women seeking an abortion but unable to find an available clinic over the next year.
"It's crystal clear," Crepps said, that the law will harm women's health and improperly deny access to abortion by erecting two medically unnecessary regulations - requiring abortion doctors to have admitting privileges in a nearby hospital and forcing doctors to dispense abortion-inducing drugs using outdated protocols with potentially harsher side effects.
But Andrew Oldham, deputy solicitor general in the attorney general's office, said arguments about medical necessity are a distraction.
The U.S. Supreme Court has ruled that states may enact abortion regulations designed to protect fetal life and encourage women to choose childbirth, even if those policies are not medically justified, Oldham said.
Oldham also disputed claims that the law will force more than one-third of abortion clinics to close because their doctors could not get admitting privileges. Abortion providers, he said, offered only anecdotal evidence but no solid proof of the claim.
"It has not been proved by any evidence," Yeakel interrupted to ask, "that any abortion clinic will close because of the admitting privileges provision?"
"Yes, your honor," Oldham replied.
Later, Crepps reminded Yeakel that officials of Whole Woman's Health had testified that three clinics would be forced to close because eight of 11 doctors could not get admitting privileges. Other abortion providers also provided the court with statements about impending closings, she said.
"Short of calling these witnesses dishonest, I don't know what the state can expect for further proof," Crepps said.
Raising "a question of basic fairness," Crepps noted that the new law gave abortion doctors 90 days to gain admitting privileges by Oct. 29, while other regulations give hospitals 170 days to act on an application for privileges. Whole Woman's Health, for example, has 15 applications pending, Crepps said.
"Before the state can put these providers out of business, they must at least have enough time to come into compliance," she said.
Oldham urged Yeakel to deny the request for a permanent injunction that would bar enforcement of the law's drug and admitting privileges provisions, saying abortion providers fell far short of meeting their burden of proof.
"They bear a crushing burden to show . that not only clinics will close, but every single application of the law is (unconstitutional). They have not proved either," he said.
Oldham said abortion providers "seem to confess that the application of the statute is constitutional in at least some applications" - acknowledging, for example, that the regulations will "impose little or no burden on thousands and thousands of Texas women seeking an abortion." The challenge to HB 2 was filed by Planned Parenthood, the American Civil Liberties Union and the Center for Reproductive Rights, as well as 11 abortion providers and three doctors who perform abortions.
Their lawsuit did not challenge the law's ban on abortions after the 20th week post-fertilization - four weeks earlier than currently allowed - except when the woman's life is endangered or in cases of "severe fetal abnormality." The ban will take effect Tuesday.
The lawsuit also did not challenge the law's requirement that all abortion clinics meet the same standards as ambulatory surgical centers by Sept. 1, 2014. A future lawsuit on that regulation is expected.
Yeakel's ruling will not be the last word on HB 2's constitutionality. Both sides have vowed to appeal an adverse ruling to the 5th U.S. Circuit Court of Appeals.
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