Roe's End?

Supreme Court case will decide the future of abortion access in the U.S.


Illustration by Jason Stout

After nearly a decade as a single mother raising a son, born from an unexpected pregnancy, she was finally able to focus on her own future; her own dreams; her career plans. Her son was now older, increasingly independent, and she too could finally experience more freedom.

But then, a man who claimed to have known her from college raped her. Two months later she discovered she was pregnant. Shattered and violated, her future plans quickly fell out of focus.

April considered adoption, yet the emotional weight of carrying a rapist's child for nine months was too much to bear. "Being forced to live that night out every day ... I couldn't handle it," she says. "The negativity that I was feeling would affect the child coming into this world, I didn't think that was fair. I would have been unhappy, my child would have been unhappy, my existing child would have been unhappy, and everything around us would have reflected that."

The choice became clear for the 35-year-old Texas woman, still hoping to establish her career and prioritize her own goals. She decided to terminate her pregnancy, joining the majority of women who do so – mothers. Some 61% of women undergoing abortion in the U.S. already have at least one child, and half of them have two or more children, according to the Guttmacher Institute. Unfortunately, April (whose name has been changed to protect her privacy) also shared another trait common among women who choose abortion – she lacked financial security; more than 40% of women that have abortions are poor. So instead of simply booking an appointment, April first had to find the money. And she, like many low-income women in Texas, was hit with the added burden of navigating an obstacle course of onerous rules and regulations strategically crafted by anti-choice state lawmakers.

Determined, April conducted heavy research (a "part-time job" she calls it) trying to find out where she could go in Texas for the procedure, how much it would cost, and what kind of financial support was available, all the while striving to understand the complex hurdles imposed by House Bill 2, the four-part law restricting abortion access, passed during the 2013 legis­lative session. HB 2 compels women to follow outdated FDA protocol when ingesting abortion-inducing pills; bans the procedure after 20 weeks of pregnancy; mandates that abortion-performing physicians secure admitting privileges at a hospital within 30 miles of the clinic; and the final part – temporarily blocked by the U.S. Supreme Court – forces abortion clinics to make expensive changes to conform with the same building requirements as ambulatory surgical centers (ASCs). Taken together, the package law – said to be one of the harshest and most destructive in the nation – has shuttered half of the state's abortion clinics and created a logistical nightmare for providers and patients.

Compounding her confusion, April (who discovered she was pregnant eight weeks after the fact) calculated her pregnancy using the day she was raped as her starting date. But clinics start the count at the gestational period (based on the last menstrual period), which tacked weeks onto April's pregnancy, resulting in steeper barriers and higher expense. According to research from the Texas Policy Evaluation Project, HB 2 has caused appointment wait times at clinics to skyrocket, with some clinics delaying the procedure up to 20 days, in contrast to five days or fewer people usually had to wait before HB 2. And as the price of abortion (which can typically range between $350-3,500) is contingent upon how far along a pregnancy is, longer wait times translate into a more costly procedure – and that's assuming you have the money.

"I read an article that said, 'If you want to have the procedure, don't be poor' – but it's really the truth," says April. "If I had disposable income, it would not be a big deal. But being in the financial situation I am in made it take so much longer, made it so much more stressful and emotional." To pay for her abortion, the single mom relied on a handful of financial assistance groups, such as Fund Texas Choice, Texas Equal Access Fund, and the Lilith Fund. Without their help, she says, her procedure would have been impossible.

Moving further and further into her pregnancy and still struggling to secure all the cash needed, the native Texan – limited by the dearth of clinics and prolonged wait times – was eventually pushed out of her home state for constitutionally protected medical care, receiving the now $8,000 procedure in neighboring New Mexico, her final portion of funding trickling in while she sat anxiously in the clinic waiting room. And opponents of HB 2 say that is the state's ultimate goal – to create an abortion care landscape so difficult to maneuver, so limited in its options, so burdensome and so inaccessible, that it transforms legal abortion into a mere theoretical right in Texas.

In fact, during hearings at the 5th Circuit Court of Appeals last January, state attorneys argued that women in Texas would not be unduly burdened by the law, as they could simply travel to New Mexico for abortion. But New Mexico does not employ the regulations found in HB 2, invalidating the state's core claim – that the law is intended to protect the health and safety of women.

Now, the U.S. Supreme Court is charged with determining if the state can get away with it. Picked up for review by the nine justices in November, Whole Woman's Health v. Hellerstedt (formerly v. Cole, and before that, v. Lakey) – the legal challenge against HB 2 filed by abortion providers – will decide if Texas and other states must demonstrate that their abortion restrictions serve a legitimate health interest. Expected to be the most pivotal abortion rights case since 1992, Whole Woman's Health v. Hellerstedt could very well set the course for reproductive health laws across the country for decades to come.

And it all started with four divisive bills that failed to muster enough support from a conservative Legislature during its regular session, only to be resurrected later by an anti-choice governor hellbent on making "abortion a thing of the past."


Damage in HB 2's Wake

When former Gov. Rick Perry called a special legislative session (purportedly to tackle lingering "emergency" issues) in part to address the four abortion-restrictive laws that didn't pass during the regular 2013 session, it drew unforgettable and unprecedented engagement from pro-choice advocates, who flooded the Capitol by the thousands to oppose and testify during committee hearings. The historic "orange army" protests – memorialized in photos saturated with orange shirts filling nearly every crevice of the Capitol rotunda – reinvigorated local reproductive rights activism. Famously culminating in the epic 13-hour filibuster by Ft. Worth Sen. Wendy Davis, opposition to the omnibus bill attracted national and international attention. And for a brief moment in Texas legislative history the law was dead, suffering defeat by the resilience of pro-choice lawmakers and the power of citizen mobilization.

Despite the resounding objection from thousands of citizens, Perry – underscoring his often dictatorial leadership style – simply called a second special session, where normal voting rules were dashed, allowing HB 2 to sail through both chambers to his desk, where it was met with a publicized bill-signing ceremony in July 2013. "In signing [HB 2] today," he said, "we celebrate and further cement the foundation on which the culture of life in Texas is built."

Nearly three years later, the destruction inflicted by HB 2 is painfully palpable.


Former Gov. Rick Perry, flanked by anti-choice bill authors, signs House Bill 2 into law in July 2013, triggering more than a dozen clinic closures and multiple legal battles.
Photo by John Anderson

While 41 abortion clinics existed in Texas prior to HB 2, only 19 remain today. The closures, a direct result of the difficulty in obtaining hospital admitting privileges for physicians and an inability to subsidize costly building changes, came in waves. Eight facilities shuttered or stopped offering abortion care after the bill passed. Another 11 clinics did so when it was enforced in November 2013. Over the next two years some clinics closed then reopened as oscillating court rulings pulled providers in different directions, while others shuttered for good. If the final ASC provision of the law goes into effect, as few as 10 clinics, concentrated in five major metro cities, are expected to serve all 5.4 million reproductive-age women in Texas. In Austin, only two abortion clinics – Planned Parent­hood's South Austin Health Center, an ASC, and Austin Women's Medical Center – remain today out of the four in operation prior to the rollout of HB 2. Planned Parenthood will be the only center in Austin offering abortions if the ASC requirement is upheld.

In October, the Texas Policy Evaluation Project (TxPEP), a five-year analysis of the impact of the Legislature's slashes to women's health, found women are now being forced to wait up to four times longer for an appointment. Wait times at existing ASCs were 10 days or longer over the past year, they also noted, meaning the centers can barely satisfy current patient demand. TxPEP, a collaboration between UT-Austin, Ibis Reproductive Health, University of Cali­fornia-San Francisco, and the University of Alabama-Birmingham, cautions that with the ASC rule in place, the lone surviving clinic in Austin would see the annual number of abortions performed jump from about 3,700 to almost 7,500.

"Clearly, we are trying to be prepared and take whatever steps we need to expand services to meet the demand for women," says Sarah Wheat, vice president of community affairs for Planned Parenthood of Greater Texas. "But these restrictions are too onerous. There should be more than one provider to service our community in Austin; there should be the full network of health providers that existed before the law passed." In a troubling preview of what may come, Planned Parenthood experienced a staggering 660% increase in callers seeking to schedule an abortion appointment when the ASC rule temporarily went into effect in October 2014.

More women would also be pushed from the first trimester of pregnancy to the second, raising the annual number of those later-term abortions from about 6,600 to nearly 12,400, a potentially dangerous prospect. "The increase in second-trimester abortion is concerning from a public health perspective. While they are very safe, they're associated with a higher risk of complications compared to early abortions and are more expensive," says Dr. Daniel Gross­man, a TxPEP co-investigator.


Distance and Other Burdens

As clinics shuttered left and right, the number of women required to venture at least 100 miles to receive their legal medical procedure more than doubled from 417,000 in May 2013 to 1,020,000 by April 2014. If the ASC rule goes into effect, the number is estimated to reach 1.34 million.

Couple the appointment delays with the strain of increased travel time, while factoring in up to four state-mandated trips to the clinic, the cost of child care, time off school or work, price of lodging, and securing funding for the procedure itself, it comes as no surprise that a majority (55%) of Texas women face at least one roadblock to reproductive health care access – with cost being the leading obstacle, TxPEP research found. With 42% of U.S. women who obtain abortions earning incomes below the federal poverty level ($11,770 for a single woman with no children), the barrier of cost alone is substantial. And so the journey to obtain what should be easily accessible medical care becomes an exhausting, overly complicated, and perilous process, if not one that is wholly out of reach for low-income women. They, along with minorities, especially Latinas of the Rio Grande Valley – rural, and undocumented women – suffer disproportionately. Ultimately, the law punishes the state's most vulnerable.

"Certainly low-income women are taking the brunt of this," says Grossman. "They are being hit hardest by the significant added financial costs in terms of travel expense, lost wages, and child care." Gross­man and cohort offer a microcosm of what is likely occurring on a larger scale: In an article accepted by the medical journal Contraception in December, TxPEP conducted 23 in-depth interviews with Texas women seeking abortions in the wake of the clinic restrictions. Two women were pushed past 12 weeks of pregnancy before obtaining abortion care, while another two were forced to carry their pregnancies to term. The reasons for the latter? Constrained by high costs and excessive travel requirements, the two mothers in their 20s were unable to find a facility within their reach.

"This was never going to affect those lawmakers or their families, because people with means will always be able to get access to safe, legal abortion. They can afford to travel to another state, for instance," Jan Soifer, local attorney and Whole Woman's counsel, told the Chronicle in November. "This was always about punishing poor women, and keeping barriers in front of women whose lives are already so difficult. And that offends me so deeply." (Summing up the correlation between abortion access and socioeconomic status during a law event in 2015, ardently pro-choice Supreme Court Justice Ruth Bader Ginsburg said succinctly, "There's a sorry situation in the United States, which is essentially that poor women don't have choice. Women of means do. They will, always.")

Schell Carpenter, president of the Lilith Fund for Reproductive Equity, a 15-year-old local nonprofit that provides direct assistance to women unable to afford abortion, understands well the growing need for financial help. Carpenter often sits on the organization's hotline and hears passionate pleas from women struggling to afford the procedure. In 2015, the group received a record 4,400 calls (yet due to limited resources was only able to fund 1,300); historically, 80% of callers are women of color, and 70% are already mothers. "I think about all the women that aren't even going to a clinic because they can't afford it, or are not willing to take the risk to cross a border checkpoint ... or don't know if it's even still legal," says Carpenter. Similarly, Vicki Saporta, president and CEO of the National Abortion Federation, says the group's hotline has been "flooded with calls" since HB 2. Many of the women who contact NAF express major difficulty paying for costs associated not only with the procedure but with travel; some even sell off personal items, from furniture to wedding rings, to obtain abortion care.

"It's important to realize that a consti­tu­tionally protected right to abortion isn't mean­ingful if there isn't access," reminds Carpenter. "And that's what this law is trying to attack. Without that access there is no choice."


Barriers to Access

As most abortion providers will stress, it's crucial to consider HB 2's impact not in a vacuum but within the context of all the other barriers Texas lawmakers have crafted for women over the years. That includes a $74 million funding cut to family planning services in 2011, which helped lead to the closure of or halt in services at 82 publicly funded family planning clinics; the ones that remained served 54% of the clients that they had previously, according to a May 2015 article in the American Journal of Pub­lic Health. As a result, the clinics became limited in their ability to provide a full range of contraceptive methods, including long-acting reversible contraceptives (such as IUDs), which provide some of the most effective protection from unwanted pregnancy. And in an attempt aimed most directly at Planned Parenthood, lawmakers have steadily chipped away at preventative Medicaid services, such as birth control. It's no wonder 70% of Texas women reported barriers to contraceptive access in a recent study published in Obstetrics and Gyne­co­logy. By straining access to pregnancy prevention, anti-choice legislative policies, ironically, have created an environment that promotes unplanned pregnancy, and thus creates a greater need for abortion.

In 2011, the state also passed a pre-abortion sonogram law, requiring women to undergo an ultrasound (and hear the fetal heartbeat) 24 hours before the procedure, tacking on an extra trip to the clinic. And doctors must give abortion-seeking women a list of where they can go for free sonograms, which largely include religious "crisis pregnancy centers," whose mission is to deter abortion. More­over, the sonograms at CPCs are nonmedical, meaning they do not satisfy the state's requirement, potentially pushing misinformed women further along in their pregnancies.

The mixture of the Lege's draconian and ideologically motivated decisions in the past five years, combined with HB 2, created a perfect storm of destruction to the state's women's health network, and one that will take decades to rebuild, say providers and health professionals. "Sadly, HB 2 was not the first barrier. We really started to see more and more women fall through the cracks after the decimation of family planning in 2011 and the ultrasound law," says Amy Hagstrom Miller, founder and president of Whole Woman's Health, the network of reproductive health facilities suing the state over the regulations. "Just those hurdles alone were too much to surmount for so many women – and now, with HB 2, those women have nowhere to turn, and so they've been left with no choice but to take matters into their own hands."


Amy Hagstrom Miller of Whole Woman's Health
Photo by John Anderson

Miller recounts the story of a woman who reached out to her McAllen clinic. Tem­po­rar­ily closed, the clinic referred the caller – pregnant, poor, and desperate to secure an abortion – to the nearest licensed facility, 250 miles away in San Antonio. "I cannot take that much time off work and afford childcare to travel to San Antonio," the woman said. "But you need to know I will terminate this pregnancy. I have to terminate this pregnancy. So how about I tell you what I have in my cupboards, under my sink and in my medicine cabinet, and you tell me what to use and how to use it in order to do my own abortion."

Indeed, the evidence would corroborate the anecdotal: TxPEP released chilling findings in November showing anywhere between 100,000 and 240,000 women (from age 18 to 49) have tried to self-induce their abortions without medical assistance, making it more common in Texas than in other parts of the U.S. Researchers point to the state's sweeping clinic closures and proximity to the U.S.-Mexico border, where the abortion-inducing drug Misoprostol is often available in pharmacies without a prescription. "We've started to see more and more women come in for an ultrasound to see if they're pregnant and we don't see them again," says Miller. "They are likely attempting to self-induce. We've also seen more people crossing the border to Mexico or trying to find abortion medication on the Internet. And we're hearing about people selling abortion pills out of their houses in communities that don't have access and are experiencing poverty and disenfranchisement." Miller adds, "I don't just mean the Rio Grande Valley – I'm talking about places like Beaumont, too."

If the Supreme Court fails to block the final part of the law, the number of women who are forced to resort to self-induction will inevitably rise, warn reproductive health advocates. "We suspect, as it becomes harder and harder to access abortion, self-induction will be more common," says Grossman.


The Legal Road

The case that now stands before the U.S. Supreme Court is the apex of three years of protracted court rulings that volleyed Texas abortion providers and patients between intense hope, anxiety, and confusion.

The rocky legal road to SCOTUS highlights not only the state's anti-choice obstinance, but the immense power of one of the most conservative federal appellate courts in the country. In September 2013, roughly two months after the bill was signed into law, abortion providers filed suit against the state, challenging two of the four restrictions – physician admitting privileges, and the medication abortion rule. While federal Judge Lee Yeakel agreed with plaintiffs in Planned Parenthood v. Abbott, writing that the admitting-privileges rule was void of a rational basis and created an unconstitutional burden on women seeking care, the conservative U.S. 5th Circuit Court of Appeals stayed his order and issued a final ruling that severely minimized the burden women would face when traveling great lengths for abortion care. Judge Edith Jones insensitively downplayed the 300 miles round-trip that mostly low-income, Latina women of South Texas must trek by saying, "You know how long that takes in Texas at 75 miles an hour? That's a particularly flat highway."


Thousands of "orange army" pro-choice activists gather at the Capitol to oppose Texas abortion restrictions in 2013.
Photo by John Anderson

Undeterred, providers filed a second legal challenge in April 2014, just days after the appeals court ruling. Represented by the Center for Reproductive Rights and Austin-based law firm O'Connell & Soifer, Whole Woman's Health, Nova Health Systems, Aus­tin Women's Health Center, Killeen Women's Health Center, and a group of abortion-providing doctors again challenged the admitting-privileges rule, specifically at two clinics in underserved communities (the Whole Woman's Health clinic of McAl­len and Reproductive Services of El Paso) and this time, challenged the requirement that clinics must transform into ambulatory surgical centers (ASCs). Following a five-day trial, Yeakel (again) deemed the regulations unconstitutional, writing they would "create an impermissible obstacle" for women and "operate for a significant number of women in Texas just as drastically as a complete ban on abortion."

Like déjà vu, the 5th Circuit stayed his ruling, allowing the ASC rule to take effect in early October 2014 – albeit briefly. Some 13 clinics closed their doors and sent patients and providers into a panic.

So to recap, twice a Republican-appointed federal judge struck down the law, calling it an undue burden on women, and twice, the 5th Circuit Court of Appeals nixed his opinion, shrugging off significant barriers to abortion access.

That's when the U.S. Supreme Court stepped in, temporarily blocking the appeals court ruling, pending a full review by the 5th Circuit. But as HB 2 case history has shown us, a journey to the 5th Circuit spells disaster for reproductive health providers. As expected, the conservative New Orleans-based court sided with the state in June 2015. But just days before the ASC rule was to be (re-)enacted, the Supreme Court swooped in with a 5-4 stay, granting plaintiffs of Whole Woman's Health v. Cole another rare victory.

Hagstrom Miller, like other abortion providers in the state, had a front-row seat to the dizzying legal back-and-forth. Prior to HB 2, Hagstrom Miller ran six abortion facilities in Texas. Now, she's down to four; if the ASC rule is enacted, only her ASC in San Antonio is certain to remain. Over the last two years she's had to shut down her flagship facility in Austin – which also provided comprehensive preventative care like contraception and annual exams to local residents for more than a decade – as well as her clinic in Beaumont. She's also had to close, then reopen, clinics in Fort Worth and McAllen twice, due to changing court opinion, sending her and staff on an emotional and logistical roller coaster. "Closing our clinics was just heartbreaking," says Miller, somberly. "Those decisions should not have been ones we had to make. I know that even though it was the law's fault, the state's fault, I feel like I let the people in those communities down – those feelings are very real, even though intellectually they don't make sense."

In part, the rulings have still left her staff confounded. The 5th Circuit granted the McAllen clinic an exemption from the ASC rule – as it is the sole clinic to serve the expansive Rio Grande Valley – but with several ambiguous caveats: For instance, only one doctor is allowed to provide services at the clinic, and the exemption expires if another facility pops up in the 235 miles between it and San Antonio. (The RGV facility is typically counted as the tenth clinic that would survive the ASC rule.) "We've been given these weird little loopholes and asked to comply with administrative requirements that the state hasn't really explained. So, it's almost impossible to satisfy," she says. And "impossible to satisfy" – much like the rest of the law – seems to be the crux of the legislative playbook when it comes to HB 2, argue plaintiffs.

All along, providers vowed to take the case up to the Supreme Court if necessary; that promise became a reality in September when they formally requested the high court review Whole Woman's Health v. Cole. By November, SCOTUS agreed to take the case, setting in motion what is expected to be one of the most influential abortion rights cases in more than two decades.


Pretext of Safety

"What's at stake in this case is whether states can enact laws that restrict access to abortion for pretextual reasons," explains Center for Reproductive Rights' Stephanie Toti, lead counsel for Whole Woman's Health v. Hellerstedt. "The Supreme Court will have to decide if the courts have to simply defer to the Legislature without scrutinizing its motives or making sure the measures it has adopted are reasonably related to the purported goal of protecting health."

Nearly to the point of exhaustion, plaintiffs, pro-choice advocates, and health professionals contend the two HB 2 restrictions in question are not only burdensome, but completely unnecessary: The ASC rule forces clinics to undergo a series of building code changes, including adding janitor closets and expanding hallways. With no demonstrable health benefit to the patient, the construction price tag would force mostly independent providers to shell out up to $5 million and in effect, bankrupt non-ASC clinics into oblivion. One of the most common and safest medical procedures, with a death risk 10 times lower than that associated with childbirth, and typically conducted as an outpatient procedure, the need for abortion to be performed in a mini-hospital setting is unsupported by medical science.

And the idea that abortion physicians must obtain admitting privileges at a hospital within 30 miles of where the procedure is performed to ensure women who suffer complications (fewer than 1% of U.S. abortion patients) receive immediate attention doesn't even pass muster with the nonpartisan Texas Hospital Association, which slammed the rule as "time-consuming, expensive," and not in line with the "purpose for which privileges are intended." They point to an obvious logical hole: If a woman suffers complications and is rushed to the ER, there's no guarantee that her abortion doctor will be there when she arrives, yet she will be treated regardless.

For providers, the argument from day one has been focused on the lack of evidence the state brings to the table to back up the law's necessity, combined with the utter devastation it has and will inflict upon already struggling Texas women. Whether spurred by naivete, ignorance, or ruthless anti-choice ideology, bill authors and state officials have continually defended the "common sense" restrictions as benefiting the "health and safety" of women, while supplying little to no concrete medical proof to reinforce the claim. In fact, it was revealed the Attorney General's office employed notorious anti-choice activist Vincent Rue to ghostwrite testimony for pro-HB 2 witnesses during trial. The widely discredited wordsmith (who performs similar favors in courts all over the country) coached multiple witnesses, advising one, for instance, to disregard abortion data that ran counter to the state's claims. The behavior elicited censure from Judge Yeakel, who called the state's attempt to hide Rue's involvement "very disturbing."


Stephanie Toti, lead counsel in Whole Woman's Health v. Hellerstedt
Photo by Chi Nguyen / The Center for Reproductive Rights

"This conduct is pretty egregious and has been occurring on a scale that is quite likely to capture the Supreme Court's attention," says Toti of Rue's influence. "And it shows that if the best possible evidence that all of these states can come up with are doctors who aren't telling the truth and who aren't even writing their own testimony, that says something about the credibility of the state's claims and really shows that these laws are a sham."

On the other hand, the evidence in opposition to the law – delivered from a diverse array of respected major medical associations, health care professionals, and political leaders from both sides of the aisle – is unprecedented. In December, medical, science, social justice, business, religious, and political groups hit SCOTUS with a deluge of amicus briefs. The American Medical Association, the American College of Obste­tri­cians & Gynecologists, and the Amer­i­can Academy of Family Physicians wrote, "Not only are HB 2's ASC and privileges requirements entirely unnecessary, there is incontrovertible evidence that they are impeding women's access to quality abortion care." Not mincing words, the Obama administration's Department of Justice wrote in another brief, "For many women in Texas, they would create a legal regime in which a real choice about whether to carry a pregnancy to full term 'exists in theory but not in fact.'" And perhaps most notably, to support abortion as an unencumbered fundamental right, more than 110 women in the legal and political fields shared their personal abortion stories sans pseudonym – a first for SCOTUS. Of course, this is aside from the stream of clinic leaders and health professionals who spent hours testifying at the Capitol and again during the trials. What role the outpouring of hostility toward the law plays remains to be seen.

The Supreme Court will also be tasked with providing further clarity on what constitutes an undue burden. In their 50-page appeal to SCOTUS, abortion providers argue the 5th Circuit's ruling "flouted longstanding [Supreme Court] precedent" by defying standards set by seminal 1992 abortion-rights case, Planned Parenthood v. Casey. While that challenge to a multi-part Pennsylvania abortion law resulted in a reaffirmation of abortion rights in Roe v. Wade, it did allow states wider latitude in restricting the procedure. However, when crafting abortion laws, states are barred from having "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." The "undue burden" test allows the Court to balance the state's interest in protecting fetal life with the ability of women to access their constitutional right without interference. The fact that the 5th Circuit failed to see that the "abrupt closure" of more than three-fourths of Texas abortion clinics would create substantial obstacles to abortion access "makes a mockery of the standard articulated in Casey," and stands in "blatant defiance" of the Court's precedent, Whole Woman's plaintiffs write. (The 5th Circuit, unlike the 7th or 9th Circuits, openly write that they "do not balance the wisdom or effectiveness of a law against the burdens the law imposes.")

"The Texas case presents the most stark effort to continue to restrict abortion since Casey and provides the Court another vehicle to undermine or possibly eradicate the rights we now know," says Kathryn Kolbert, who served as lead counsel before the Supreme Court in Casey. "This isn't regulation, this is an attempt to push the limits of the courts and to undermine legalized abortion as much as they can get away with. And if the Texas law is upheld, it allows other states to say, 'Not in my backyard.'"

Indeed, the ruling will carry with it widespread implications. States have adopted 288 different abortion restrictions since the 2010 midterm elections, according to the Gutt­macher Institute. To get a sense of the recent nationwide upheaval of abortion rights: The same number of restrictions have been enacted in the past five years as in the entire previous 15. The laws include admitting privileges (15 new laws), and Tar­geted Regulation of Abortion Providers or "TRAP" (19 new laws), that are similar to the ones found in HB 2. "If the law is upheld, it will devastate abortion access not only in Texas but all throughout that region of the country," says Toti.

Considering the scant evidence presented by the state, juxtaposed with the damning results of HB 2, Kolbert remains "cautiously optimistic" the majority needed to overturn the law will do so, but the decision is expected to come down to Justice Anthony Kennedy, viewed as the swing vote. Legal observers can only speculate the outcome: In Casey, Kennedy helped maintain Roe in a compromise opinion, but in Gonzales v. Carhart, a 2007 case which upheld a nationwide ban on partial-birth abortion, he drafted the majority opinion. Then again, Kennedy joined liberal justices in temporarily stopping HB 2. Another tidbit to muddy the waters: Texas Solicitor General Scott Keller, who will defend HB 2 before the Court, previously clerked for Kennedy. "I'm hopeful [Kennedy] will come down similarly to where he was in 1992 ... but justices change," says Kolbert.

All eyes will be on the U.S. Supreme Court on March 2, the day oral arguments in the much anticipated case will be heard. After years of relentless fighting – from the Capitol to the courtroom – reproductive rights supporters brace for the final say on a law that has shredded their healthcare network, placed women at risk, and given the state largely unchecked power when it comes to regulating their bodies. Toti summarizes, "The justices will determine whether women will continue to have access to safe and legal abortion or whether we're going to turn the clock back 40 years and force more women to take matters into their own hands."

For plaintiffs and the millions of Texas women who rely on obtaining the constitutionally protected procedure safely in their communities, the stakes have never been higher.



Prior to multipart abortion law House Bill 2, 41 clinics existed in Texas. Today, more than half of the state's abortion clinics have closed due to the restrictions imposed by HB 2. If the U.S. Supreme Court fails to block the final provision of the law, a rule that forces clinics to transform into ambulatory surgical centers, Texas will be left with as few as 10 clinics to serve 5.4 million women (as the map above shows).

For more, check out our War on Women's Health page.

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KEYWORDS FOR THIS STORY

House Bill 2, Texas abortion law, anti-choice, Whole Woman's Health v. Cole, Texas Legislature, Gov. Rick Perry, pro-choice, Planned Parenthood v. Casey, Stephanie Toti, Center for Reproductive Rights, Jan Soifer, Amy Hagstrom Miller, Whole Woman's Health, Planned Parenthood, Texas Policy Evaluation Project, Dr. Daniel Grossman, Kathryn Kolbert, Roe v. Wade, U.S. Supreme Court, 5th Circuit Court of Appeals

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