U.S. Supreme Court Takes Up Texas Abortion Law Case

Update: Plaintiffs in the HB 2 challenge expressed optimism today after learning SCOTUS would take up their case against the state's harsh abortion restrictions. “Today, my heart is filled with hope," said Amy Hagstrom Miller, president and CEO of Whole Woman’s Health, in a statement.

"Although this is the first step in a much longer process, I am hopeful that the Supreme Court will uphold the rights that have been in place for four decades and reaffirm that every woman should be able to make her own decision about continuing or ending a pregnancy." As expected, anti-choice Attorney General Ken Paxton reaffirmed his overwhelming support for the draconian legislation, writing that “the common-sense measures Texas has put in place elevate the standard of care and protect the health of Texas women … The advancement of the abortion industry’s bottom line shouldn’t take precedence over women’s health."

Earlier: In a much anticipated decision for Texas women and reproductive health providers, the U.S. Supreme Court has agreed to hear the challenge to the state’s abortion law.

Represented by the Center for Reproductive Rights and Austin-based attorneys with O’Connell & Soifer, Texas abortion providers appealed to the high court in early September, after the 5th Circuit Court of Appeals upheld the 2013 anti-choice backed law. Plaintiffs in Whole Woman's Health v. Cole hope the court will permanently block a provision that mandates clinics change their building codes to match those of ambulatory surgical centers (ASCs) – a requirement health advocates have criticized as wholly unnecessary and tantamount to a “multi-million dollar tax” on providers. The expensive changes would bankrupt most abortion providers and leave the state with an estimated nine clinics for roughly 5 million women. As CRR attorney Stephanie Toti and Whole Woman’s Health CEO Amy Hagstrom Miller contend, the true aim of the law is to shut down Texas abortion clinics.

They also seek to challenge a provision that requires doctors obtain admitting privileges at a hospital no further than 30 miles of where the abortion is performed; the American Medical Association (AMA), the American Congress of Obstetricians and Gynecologists (ACOG), and the Texas Hospital Association have all come out against the rule. The other two parts of the four part law – a rule banning abortion after 20 weeks of pregnancy and a requirement that forces abortion doctors to follow outdated FDA protocol when administering abortion drugs – have already gone into effect.

Strained by the law’s dire impact, more than half of the state’s abortion clinics have shut their doors. Before the law, 41 clinics stood in Texas; today, 19 remain. In Austin, only two of the previous four abortion clinics have survived the law; if the ASC rule were to go into effect, only one clinic – Planned Parenthood South – would serve the population and in Texas, nearly 1 million women would be left more than 150 miles from the nearest provider.

Reproductive health advocates and some legal experts are optimistic of its defeat. They point to the fact that the high court has twice already blocked provisions of the law (once in October and again in late June). The justices will be tasked with determining to what extent should the court consider the state’s actual health interests when crafting abortion restrictions when applying the “undue burden” test of the major 1992 SCOTUS case, Planned Parenthood v Casey. (According to Casey, states can enact some restrictions to abortion as long as they don’t place an “undue burden” – or substantial obstacles – on women’s access to the procedure.)

As plaintiffs see it, the state can’t simply claim they are promoting the health and safety of women when in reality, they have severely blocked access to the procedure. SCOTUS will have to decide if the state must show evidence that their claim is true and not just an underhanded attempt at reducing abortion access. But as many abortion rights advocates argue that is precisely the intent. U.S. Judge Lee Yeakel, ruling on HB2 in August 2014, largely agreed, writing, the “unconstitutional” law would place an "undue burden on women" and "undeniably reduce meaningful access to abortion care for women throughout Texas." The conservative 5th Circuit differed on its concept and mostly disregarded the drastic impact and the major barriers – including time off work, expense, child care etc. – it would impose on women, especially rural, low-income, and minority women.

The Texas case marks the first time the justices will hear a major abortion-focused case since Gonzales v. Carhart in 2003, when they upheld the partial birth abortion ban. A decision is expected no later than June. In the meantime, oral arguments will be scheduled.