A legal battle is being waged in Texas over the controversial new anti-choice law that inspired a people’s filibuster over the summer. Texas Attorney General Greg Abbott has asked a federal appeals court judge to immediately reinstate a key part of the new law a day after it was ruled unconstitutional by a lower court judge. On Monday, District Judge Lee Yeakel struck down the provision requiring onerous hospital admitting privileges for abortion doctors. But Yeakel upheld another provision of the law that requires doctors to use a specific protocol for non-surgical, pill-induced abortions — a protocol even the judge himself acknowledged is "assuredly more imposing" and "clearly more burdensome" to women. That provision, and the law’s ban on abortion at 20 weeks post-fertilization, both went into effect on Tuesday. We discuss the impact of the Texas law and the national landscape of abortion access with RH Reality Check legal analyst Jessica Mason Pieklo, author of "Crow After Roe: How 'Separate But Equal' Has Become the New Standard in Women’s Health and How We Can Change That."
This is a rush transcript. Copy may not be in its final form.
AMY GOODMAN: We turn to Texas, where a legal battle is being waged over the future of abortion access. On Tuesday, Texas Attorney General Greg Abbott asked a federal appeals court judge to immediately reinstate a key part of the state’s new anti-choice law a day after it was ruled unconstitutional by a lower court judge.
On Monday, District Judge Lee Yeakel struck down the provision requiring onerous hospital admitting privileges for abortion doctors. The measure could have forced at least a dozen of the state’s abortion clinics to close. Judge Yeakel ruled the admitting privileges requirement, quote, "lacks a rational basis and places an undue burden on a woman seeking an abortion." Texas Governor Rick Perry has vowed to appeal that decision.
Monday’s ruling came in response to a legal challenge from groups including the ACLU and Planned Parenthood of Greater Texas. Their lawsuit did not challenge two other controversial provisions of the law: a ban on abortion at 20 weeks post-fertilization, which went into effect Tuesday, and a requirement that all abortion clinics meet costly, hospital-style building standards by September 2014.
The initial bill inspired a people’s filibuster and a marathon stand from Texas State Senator Wendy Davis that thwarted state lawmakers’ first attempt to pass it over the summer.
SEN. WENDY DAVIS: It’s important in order for me to describe the impact of this particular bill. And that’s what I’m clearly talking about, is the impact of this particular bill. I think it’s perfectly reasonable to talk about it in the context of what women in Texas today will face if this provision goes in place.
AMY GOODMAN: State Senator Wendy Davis is now running for governor of Texas after that 11-hour filibuster helped rocket her onto the national stage.
Well, in his ruling, Judge Yeakel upheld yet another provision of the Texas law, which could have a major impact on the way abortions are delivered. The measure requires doctors to use a specific protocol for non-surgical, pill-induced abortions. Doctors say the protocol is outdated. And Judge Yeakel acknowledged the protocol is, quote, "assuredly more imposing and unpleasant" and "clearly more burdensome" to women. But he allowed the provision mandating that protocol to stand.
Meanwhile, the Oklahoma Supreme Court definitively ruled Tuesday that a similar restriction on medication abortion in that state is unconstitutional, saying it, quote, "restricts the long-respected medical discretion of physicians." The Supreme Court has indicated it’s interested in taking up that case.
Well, for more, we go to Minneapolis, Minnesota, where we’re joined by Jessica Mason Pieklo. She’s senior legal analyst at RH Reality Check, co-author with Robin Marty of the new book Crow After Roe: How "Separate But Equal" Has Become the New Standard in Women’s Health and How We Can Change That. She’s also a law professor at Hamline University School of Law in St. Paul, Minnesota.
Jessica Mason Pieklo, welcome back to Democracy Now! Talk about the significance of the judge’s ruling this week as the rest of the law in Texas goes into effect.
JESSICA MASON PIEKLO: Good morning. Thank you for having me back.
Yes, so, the ruling is significant. It really sets the stage for the future battle of abortion access in Texas, which is a battle over geographic access and clinic access. As you mentioned, the 20-week ban that is included in the omnibus bill has not yet been challenged, and so that’s been effect in—that’s in effect. And so, the focus really now is on how the Texas Legislature is attempting to restrict geographic access and, with the medication abortion, as well, access to specific abortion procedures in the state.
AMY GOODMAN: Explain what that medication abortion is about. What are the restrictions on it in Texas?
JESSICA MASON PIEKLO: Sure. So, as part of this omnibus abortion bill, the Legislature enacted a requirement that physicians who administer medication abortions follow a specific protocol developed by the FDA in 2000. And as Judge Yeakel acknowledged in his opinion, that protocol is not actually the standard of care in delivering medication abortions. The standard of care is actually physicians using off-label uses of various drugs, including RU-486, which is one of the two-drug protocol. And we use—doctors use off-label uses in medications all the time. I mean, that is how the medical practice develops. And—but the Texas restriction and similar medication abortion restrictions in other places like Oklahoma and North Dakota, for example, they require doctors to follow only the labeling protocol developed in 2000, which, as the Oklahoma Supreme Court ruled on Tuesday, effectively bans the use of medication abortions across the board. And so, we’ll see that—we’ll see that impact in Texas.
Judge Yeakel defended his decision by saying that because the FDA protocol is in place and is one alternative for doctors to use, there’s not a ban. And even though it may be burdensome and difficult for patients who need the procedure, and in some cases cut off access earlier to some patients, that it is still an acceptable burden for those patients to bear.
AMY GOODMAN: And in Oklahoma, the ruling, Jessica?
JESSICA MASON PIEKLO: And in Oklahoma, the Supreme Court ruled essentially the opposite, which was that the state law there was unconstitutional because it took away the discretion of physicians in treating their patients and place that, those medical decisions, within the ambit of the state Legislature, and, as a result of it, created a system of unnecessary burdens that became unconstitutional. The language in the Oklahoma bill is slightly different, but both Oklahoma and Texas get to the same goal, which is trying to make medication abortion if not impossible to access, so difficult that women will give up.
AMY GOODMAN: Jessica, your article suggests that this RU-486 ruling in Oklahoma sets a new precedent—
JESSICA MASON PIEKLO: Well, the Supreme—
AMY GOODMAN: —in Texas.
JESSICA MASON PIEKLO: Yes, well, so, you know, this is a fight that is going on across the country. And the Supreme Court has indicated an interest in taking a look at the issue of whether or not states can effectively ban the use of medication abortion by dictating that they follow—that doctors follow the FDA protocol or similar type of restrictions. And so, the Oklahoma Supreme Court had ruled earlier in the year that the Oklahoma law was unconstitutional. That ruling was petitioned to the Roberts Court, and they indicated their interest in it but sent it back down to the Oklahoma Court to answer a couple questions of state law. That ruling came in yesterday. And so now it’s a question of whether or not the U.S. Supreme Court wants to move forward in taking a look at that.
AMY GOODMAN: I wanted to go to a clip of Carly Fiorina. She was speaking on ABC News. The former Republican Senate candidate, Carly Fiorina, said that Texas’s anti-abortion law is far from a particularly extreme position.
CARLY FIORINA: Not everyone in the Republican Party is pro-life. I happen to be pro-life, but there are many pro-choice Republicans. But example: When Governor Perry pushed forward legislation in Texas to ban abortion after 20 weeks, it was labeled as an extreme move. That’s five months. Five months. There are only four countries in the world that have—that legalize abortion after five months: China, North Korea, Canada and the U.S. It’s actually not a particularly extreme position to say a woman needs to have a choice up to five months, and then there really has to be a medical reason. But it got cast as a very extreme point. I would be willing to wager that there are many, many single women who are pro-choice who say, "You know what? Five months sounds reasonable to me." So I think part of the Republican Party’s challenge is to not fall into the trap of having issues cast the way our political opponents want them cast, and be willing and courageous enough to actually have the debate.
AMY GOODMAN: That was Carly Fiorina on ABC. She was a former California Senate candidate. Jessica Mason Pieklo, your response?
JESSICA MASON PIEKLO: Well, you know, the extreme position is, I think, an accurate one, because what we’re talking about here are bans that still exist pre-viability and prior to the time when a degree of prenatal testing can indicate fatal fetal anomalies or other problems in pregnancy that means that pregnancy is not compatible with life. And so, those—the reasons we allow later-term abortions to take place is because things happen in pregnancies, and those—those events can be tragic for the pregnant person. And we’ve decided that the best option is to let that be a decision that happens between the pregnant person and their doctor. And the Supreme Court has made this very clear, not only just in Roe v. Wade, but in the precedent that follows, that up to the point of fetal viability, there is this zone where the patient and the doctor should have the ability to make those decisions on their own. A 20-week ban is still a pre-viability ban. And to characterize a pre-viability ban as extreme is to misstate the nature of the law and the true intentions behind those bans.
AMY GOODMAN: Jessica, earlier this month, Texas Governor Rick Perry claimed his wife misspoke when she referred to abortion as a woman’s right. This was at a public event last month. Perry says his wife used the wrong word in the wrong place. This is what the first lady of Texas, Anita Perry, said.
EVAN SMITH: So, when women say to you, "Mrs. Perry, you’re the first lady. You understand that this is an important issue and that women’s rights are an important issue. And, you know, we hope that you’ll stand with us," your view is governor has got it right, the administration has it wrong?
ANITA PERRY: Well, it is—it is a—that’s really difficult for me, Evan, because I see it as a woman’s right, as, you know, if they want to do that, that is their decision. They have to live with that decision.
EVAN SMITH: Mrs. Perry, I want to be sure that you didn’t just inadvertently make news. Are you saying that you believe that—
ANITA PERRY: No.
EVAN SMITH: —that abortion is a woman’s right to make that choice?
ANITA PERRY: It is not mine. It is not something that I would say for them.
EVAN SMITH: Do you believe that the state is attempting to say for them, and that if the governor and his administration had its way, it would say for women that it was not their right?
ANITA PERRY: I think it goes back to the states.
EVAN SMITH: Yeah.
ANITA PERRY: And Texas has decided that, no, that is not what we want in the state.
EVAN SMITH: Right, but your personal point of view is that it’s a person’s decision within the law to make that choice?
ANITA PERRY: Well, I don’t really think that’s making news. I mean, I think that’s—you know, yeah, that could be a woman’s right, you know, just like it’s a man’s right if he wants to have some kind of procedure.
AMY GOODMAN: That is the first lady of Texas, Anita Perry. Her husband, Governor Rick Perry, said she misspoke, though it sounds like she was very clear about what she felt. Jessica Mason Pieklo, she sounds a little like Laura Bush, right? President Bush was opposed to abortion, and Laura Bush had expressed her support for Roe v. Wade. What’s the significance of this? Is there any? And also, just give us a last national picture of where abortion rights stands in this country.
JESSICA MASON PIEKLO: Sure. I mean, I think Anita Perry’s statement is significant, and I think the comparison to Laura Bush is apt, as well, because what we see is that we have male lawmakers making decisions as to fundamental rights of women. And while Mrs. Perry also said that, you know, this is a matter that should be left up to a state, the reality is, when we’re talking about fundamental rights, those are not something that states vote on. We do not have a fundamental right to vote in one state that does not exist in another. And abortion access and abortion rights is a fundamental right up to pre-viability on question. The Supreme Court has said that time and time again. And so, this is not a matter of law that should be intentionally clouded the way anti-choice activists have.
In terms of the national picture of where things stand right now, we are really in a battle state by state. We have several potential cases that are working their way up to the Supreme Court, one including a challenge to a Ninth Circuit ruling that struck Arizona’s 20-week ban. The attorneys for Arizona just filed their petition with the Roberts Court to have them take a look at that, to challenge directly the standard in Roe that viability is where we draw the line in terms of regulating state power. In terms of abortion access, we have the medication abortion bans popping up across the country that we’ve talked about. And we’ve seen TRAP regulations, which are targeted regulations of abortion providers, architectural and other requirements that are designed to close clinics or make it prohibitively expensive for them to operate.
So what we’re seeing nationally is a vise grip on clinics and abortion access. To the extent that we have states that are held by conservative legislatures and governors, those restrictions have advanced rapidly, like Texas is an excellent example, Arkansas, North Carolina, Mississippi, places where access was already under threat, and now there is a window, and they are taking that opportunity and off to the races with it.
AMY GOODMAN: Jessica Mason Pieklo, thanks so much for being with us, senior legal analyst at RH Reality Check. She co-authored the book, Crow After Roe: How "Separate But Equal" Has Become the New Standard in Women’s Health and How We Can Change That, also a professor of Hamline University School of Law in St. Paul, Minnesota.
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