State Attacks Whole Women's Health in Battle Over Anti-Abortion Bill

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Clinics continue to rail against the state's new abortion law in court, a law that has closed almost half the abortion clinics in Texas through more stringent facilities requirements and required hospital admitting privileges.

Whole Woman's Health has closed clinics in Beaumont, McAllen and Austin since House Bill 2 went into effect, unable to find hospitals willing to grant their doctors admitting privileges or find financing to upgrade facilities to ambulatory surgical centers. The costly ambulatory surgical center requirement, the real kicker in the bill, goes into effect on September 1. Similar requirements whittled Mississippi down to a single abortion clinic.

On the stand today, CEO Amy Hagstrom Miller said efforts to lease or finance an upgraded facility in Austin and Fort Worth had fallen through in the past year. A broker assisting Whole Woman in potential financing in Fort Worth told the clinic chain last week that 15 banks had passed on loans, and no one seemed interested in a short-term lease in hopes of a better bill in the upcoming session.

"It's just too risky to invest in Texas," Miller said. "They ask, 'How do you know another law might not pass next session that would prohibit you from operating as an ambulatory surgical center?'"

Whether Whole Woman can finance an ambulatory surgical center in Fort Worth is not US District Judge Lee Yeakel's primary concern. Yeakel is focused on two bright line tests: whether doctors in Rio Grande Valley or El Paso, in practice, can get admitting privileges to a hospital within 30 miles of their abortion facilities and whether the ambulatory surgical center requirement will be an unconstitutional burden for abortion providers or women of the Rio Grande Valley and El Paso.

Lawyers for the state painted Whole Woman's Health clinics as facilities with multiple health violations and little quality control. The state's argument has been that upgraded centers are necessary for medical complications and to protect the health of the women who seek to obtain a pharmaceutical or surgical abortion.

Miller said Whole Woman's Health facilities had a clean bill of health until the clinic chain signed onto the legal challenge to House Bill 2 filed last year by Planned Parenthood of Texas. Suddenly, the clinics had numerous unannounced inspections, multiple complaints and difficulty submitting appeals.

The relationship the chain had with the Department of State Health Services turned hostile, with frequent inspections and record requests, Miller said.

"There was a very significant change (in their attitude), almost to the point of having it feel adversarial," Miller said. "It was very adversarial, uncomfortable, disruptive."

Lawyers for the state presented clinic reviews around quality control and personnel CPR training that Miller said existed but which clinic personnel failed to present. She also said a request to discuss the use of a mobile ambulatory surgical center was presented to Department State Health Services staff and forwarded to legal counsel, never to be answered by anyone from the agency.

The state will mount its case starting on Wednesday afternoon, with a goal of finishing by the end of the day Thursday. Aspects of Planned Parenthood's challenge are still pending before the Fifth Circuit Court of Appeals. Yeakel is likely to rule on the Whole Woman Health challenge quickly, as it took him less than two weeks to issue a ruling in the last challenge.

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