Pro-choice activists and abortion providers filed a federal lawsuit challenging Texas's new, far-reaching abortion law on Wednesday, just days after a federal appeals court upheld restrictions that have already shuttered clinics in the state. It is the second challenge to the state law, in an increasingly bitterly fought battle over abortion rights that legal experts say is likely to end up at the supreme court.
The new challenge to HB2, announced on Wednesday, is focused on the requirement that all abortion facilities meet the same structural requirements as surgical centres, which would require them to rebuild. It also seeks an immediate court order to block a requirement that abortion doctors have admitting privileges at nearby hospitals, for two specific clinics - Whole Woman's Health in McAllen, and Reproductive Health Services in El Paso – that are the last safe providers of abortion care in their communities.
The Center for Reproductive Rights, which filed the suit on behalf of several abortion providers in Texas, argues that the requirements will slash the number of abortion facilities available to the state's 1.3 million women from 24 to six, and will force many women to travel 1,000 miles to have an abortion.
They say it will adversely affect poorer women who cannot afford to travel.
A three-judge panel of the fifth circuit court of appeals ruled last week to uphold two of the bill's many restrictions. It found there was not enough evidence to suggest that the new rules create an undue burden on the majority of Texas women attempting to access abortion.
The lawsuit is the latest in a series of legal battles working their way through the courts to challenge restrictions to the constitutional right to an abortion enshrined by the supreme court's Roe v Wade decision in 1973. Other states have passed a series of restrictions on abortion providers, but none so wide-ranging.
Nancy Northup, the president and chief executive of the Center for Reproductive Rights, said: “We filed this lawsuit to stop the second largest state in the nation from plunging women back into the darkness and grave danger of illegal abortions that Roe v Wade was supposed to end.”
A study published by Texas Policy Evaluation Project, carried out before the abortion restrictions were in place, found that self-induced abortion was higher in Texas than elsewhere, particularly among those living along the Mexican border.
“There is no questions that the politicians who passed this law intended this as the final blow in their assault on women's constitutional rights and ability to safely and legally end a pregnancy in Texas,” Northrup said.
Texas's HB2 is one of the nation's most restrictive abortion laws, and is opposed by the American Medical Association and the American College of Obstetricians and Gynecologists. It drew national attention last year when Wendy Davis, now a Democratic candidate for governor, held an 11-hour filibuster which failed to halt the bill; it eventually passed through the Republican-led legislature.
Since governor Rick Perry signed the bill into law last summer, at least 19 abortion providers in the state have closed, largely due to the provision requiring doctors to have admission privileges at local hospitals. The law also bans abortions after 20 weeks.
Whole Women's Health in McAllen has been unable to provide abortion services since the admitting privileges clause took effect. It recently had to close its doors, leaving the Rio Grande valley without an abortion provider ,and forcing women to travel 300 miles to find another.
Amy Hagstrom Millar of Whole Woman's Health, whose organisation also provides free contraception, said: “Politicians have thrown up barrier after barrier to prevent women safe access to abortion.”
“Now the barriers are impossible to scale.”
The requirement that require all abortions to be performed in ambulatory surgical centers will go into effect in September.
Elizabeth Nash of the Guttmacher Institute, a research organization that studies reproductive health issues, described Texas as the “ground zero” of state restrictions on abortions.
“In some states we've had some of these laws, and when litigation has happened they are blocked. What makes Texas so unique is: all of these restrictions [are] being enacted at the same time, they have been allowed to go into effect, and they affect so many women.'
Professor Eric Segall, of Georgia State University College of Law, said that, in its ruling last week, the fifth circuit appeals court misapplied the law in not ruling that the provisions amounted to an “undue burden” for women seeking an abortion.
Segall, who is pro-choice, said: "For many women who live in the Rio Grande valley, an abortion means traveling 300 miles and staying overnight. These are poor women who can't afford hotel rooms. If that's not an undue burden, I don't know what an undue burden is."
He said the ambulatory requirements were "obviously going to be an undue burden. If the fifth circuit honestly applied the undue burden they would have to strike them down."
In siding with the state in its decision last week, the 5th Circuit “misapplied the law that was before them,” Segall said.
"Let's be honest about what the fifth circuit did. Judge [Edith] Jones has been against the right to choose from the very beginning. This isn't law; it's politics.”
Segall said that it is likely the case will end up at the supreme court, where Justice Kennedy will provide the swing vote. Kennedy might be ready to "jettison any meaningful review of abortion restrictions", but probably not to reverse Roe v Wade and Casey outright."
Roe v Wade and Casey v Planned Parenthood are the court decisions that outlined a woman's constitutional right to abortion – and they also introduced the idea of a state being able to introduce restrictions up to the point of it being an "undue burden" on that right.
Theodore Joyce, an economist at Baruch College who has studied abortion policy, said that the “undue burden” for women seeking to terminate their pregnancies in Texas would fall on poor people.
“The people you worry about the most are the poor and teens, who don't recognise their pregnancies – and the next thing you know they are at 12-15 weeks, and termination is very expensive and it requires two days at the clinic. It's going to come down to race and class.”