HB 2, the landmark piece of legislation that made Wendy Davis famous, is back on trial.

Today is the second day of arguments for and against abortion providers’ latest challenge to the implementation of a new Texas law that holds abortion clinics to the same standards of care as other medical facilities.

Via the Dallas Morning News:

In a case before U.S. District Judge Lee Yeakel, the providers said the requirement that all clinics meet high surgical standards is medically unnecessary, costly and unconstitutionally inconvenient for Texas women.

The surgical facilities standards rule is due to go into effect Sept. 1 and is facing its first court challenge in Texas. The other restrictions took effect last year and have been upheld on appeal. The trial is expected to last four days, and appeals are likely no matter how the judge rules.

The requirement that doctors have admitting privileges at a hospital within 30 miles of the clinic already has caused numerous facilities to close. Before the law passed, Texas had 37 abortion facilities, which have been reduced to 20 and could go to six if all aspects of the law are upheld.

Because only six clinics will survive the change in the law, opponents to the law argue that the increased distance between women seeking abortions and the clinics that provide them constitutes an “undue burden” on the right to seek an abortion. The problem with this argument is that a mere inconvenience has never been ruled an undue burden; over the years, courts have upheld several controversial requirements, including

  • Requiring a doctor to give a woman relevant information to make informed consent
  • Requiring 24 hour waiting period
  • Requiring parental consent or notice in order for minors to obtain an abortion (if there is a judicial bypass option)
  • Requiring that abortions be performed only by licensed physicians

Additionally, the Fifth Circuit Court of Appeals has previously ruled that “that driving distance alone to get to a clinic never constitutes a substantial obstacle. No matter how far.” When the trial is over, the judge will have to address this idea again, and decide whether or not having to travel long distances to seek an abortion is an undue burden, or just an inconvenient but Constitutional obligation.

It’s important to note here that, even after the law is fully implemented, the majority of women will live within 3 hours of an abortion provider; this has led attorneys for the state to argue that the providers’ challenge to the law is motivated not by ideological rancor, but by increased business costs.

“Receiving optimal care is not an undue burden. It would be safer for patients to drive further to receive an abortion at a surgical facility with a credentialed and privileged physician than to seek an abortion at a nearby, substandard clinic,” the state’s brief said.