The fight over abortion access in Texas
continues, now with a nudge from the U.S. Supreme Court. On
Tuesday, the Court told Texas it has until Thursday at noon to
respond to
an emergency application filed Monday on behalf of Texas
abortion providers. They’re seeking to halt House Bill 2, a law
which would force most of the state’s abortion clinics to shut down
by setting up unnecessary yet costly regulatory
requirements.
Last week the
5th Circuit Court of Appeals temporarily upheld the law, which
stipulates that all abortion clinics must meet standards set up for
major surgical centers, even if the clinic does not perform
surgical abortions. Once Texas responds this week, the Supreme
Court will decide whether to vacate the 5th Circuit’s
decision.
That decision “is expected to mean that only seven or eight
clinics located in the largest cities in Texas will remain open,”
notes SCOTUS blogger Lyle Denniston. “Not long ago, Texas had more
than forty clinics operating throughout the state.”
Another facet of HB2 contributed to many of the closures. Under
this requirement—upheld
by the 5th Circuit last year—all abortion clinc doctors
must have admitting privileges at a hospital within 30 miles. The
ostensible point of the admitting privileges requirement is to
ensure women’s safety in case of an emergency, but considering a)
major complications from abortion are rare, b) women experiencing
major complications wouldn’t be turned away from a hospital simply
because their abortion doctor lacked admitting privileges, c) many
clinics in rural Texas were not located within 30 miles of a
hospital, and d) hospitals routinely refuse to grant admitting
privileges to abortion clinic doctors, the more realistic reason
behind the law is to shut down abortion clinics in the
state.
But the 5th Circuit held that the requirement was valid—that is,
it didn’t pose an “undue burden” on women seeking abortion, the
prevailing legal standard for determining whether an abortion
restriction passes constitutional muster. The court didn’t issue a
final decision on the constitutionality of the requirement that all
clinics be remodeled to meet surgical-center standards—upgrades
projected to cost as much as $1 million per clinic—but it does
allow the regulation to be enforced while the matter of
constitutionality is being resolved.
In its appeal to the Supreme Court yesterday, the Center for
Reproductive Rights, which is leading the clinics’ legal challenge,
assert that the Fifth Circuit’s order “was based on a demonstrably
wrong application of the undue burden standard.” More than 900,000
Texas women “now reside more than 150 miles from the nearest Texas
abortion provider, up from 86,000 prior to the enactment of the
challenged Act,” it points out.
“Defendants… contend ‘rational speculation that the
regulations might provide a health benefit is sufficient to deprive
millions of Texas women of meaningful access to abortion
services,” it continues.
Ignoring foundational principles of constitutional law, the
Fifth Circuit adopted Defendants’ argument, holding that the
challenged requirements may be enforced without any inquiry
into whether the requirements further the State’s aims. But
this Court’s precedents make clear that the government may not
restrict a fundamental liberty based on rational speculation
alone. Rather, there must be a closer fit between the ends
sought to be achieved and the means selected to do so.
During last year’s challenge, the Supreme Ccourt declined to do
vacate the 5th Circuit’s ruling. However, the law’s impact on
abortion access in Texas has become more profound since then. A
spokeswoman for the Center for Reproductive Rights speculated that
this could alter the Court’s thinking, though she said the
organization has no expectations one way or the other.
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