Supreme Court Accepts Texas Abortion Law Case For Review

The Supreme Court has accepted a case involving a new Texas abortion law for review, the first abortion rights case it will hear in eight years.

abortion-lawThe Supreme Court has agreed to accept its first major case dealing with abortion rights in eight years in the form of a case dealing with a new Texas law that mirrors similar laws adopted by states in other parts of the country:

The Supreme Court on Friday agreed to hear a challenge to a Texas law that would leave the state with about 10 abortion clinics, down from more than 40. The court has not heard a major abortion case since 2007, and the new case has the potential to affect millions of women and to revise the constitutional principles governing abortion rights.

“Texas is the second-most-populous state in the nation — home to 5.4 million women of reproductive age,” abortion providers challenging the law wrote in their brief urging the court to hear the case. “More than 60,000 of those women choose to have an abortion each year.”

The case concerns two parts of a state law that imposes strict requirements on abortion providers. It was passed by the Republican-dominated Texas Legislature and signed into law in July 2013 by Rick Perry, the governor at the time.

One part of the law requires all clinics in the state to meet the standards for “ambulatory surgical centers,” including regulations concerning buildings, equipment and staffing. The other requires doctors performing abortions to have admitting privileges at a nearby hospital.

Other parts of the law have already caused about half of the state’s 41 abortion clinics to close. If the contested provisions take effect, the brief said, the number of clinics would again be halved.

The challengers’ brief said that the law “would delay or prevent thousands of women from obtaining abortions and lead some to resort to unsafe or illegal methods of ending an unwanted pregnancy.” The remaining clinics would be clustered in four metropolitan areas: Austin, Dallas-Fort Worth, Houston and San Antonio.

“There would be no licensed abortion facilities west of San Antonio,” the brief said. The only clinic south of San Antonio, in McAllen, it added, would have “extremely limited capacity.”

The case, Whole Woman’s Health v. Cole, No. 15-274, could provide theSupreme Court with an opportunity to clarify its 1992 decision in Planned Parenthood v. Casey, which said states may not place undue burdens on the constitutional right to abortion before fetal viability. The court said undue burdens included “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.”

Texas legislators said that the contested provisions were needed to protect women’s health. Abortion providers responded that the regulations were expensive, unnecessary and a ruse intended to put many of them out of business.

In urging the Supreme Court not to hear the case, Ken Paxton, Texas’s attorney general, quoted from an earlier opinion. The justices, Mr. Paxton said, should not turn themselves into “the country’s ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States.”

The lower courts are divided over how much deference lawmakers’ assertions about health benefits deserve, and whether courts must test the reasons offered for abortion legislation against the available evidence.

In June, the United States Court of Appeals for the Fifth Circuit, in New Orleans, largely upheld the contested provisions. A panel of the court ruled that the law, with minor exceptions, did not place an undue burden on the right to abortion.

Lyle Denniston has more at SCOTUSBlog, and Denniston’s colleague Amy Howe lays out the issues in the case:

In 2013, Texas – despite a well-publicized filibuster by state senator Wendy Davis – passed a law known as H.B. 2. Two provisions of H.B. 2 are now before the Court. One requires physicians who perform abortions to have admitting privileges at a hospital no more than thirty miles from the clinic, while the second requires abortion clinics to have facilities equal to an outpatient surgical center. Several Texas clinics went to court, seeking to block the law.

Texas maintains that it enacted the law to protect the health of its female residents who seek abortions. It tells the Court that the admitting-privileges requirement, for example, “ensures doctors are qualified, promotes continuity of care in the case of complications that require hospitalization, and reduces communications errors and delays when a patient must be treated at a hospital” – which, it says, happens at least 210 times each year. But the Texas clinics characterize the state’s rationale as little more than a ploy to shut down the state’s clinics. The requirements will not protect women’s health, they say, but will instead harm women by “drastically reducing access to safe and legal abortion services throughout” Texas.

The Texas clinics also complain that the new requirements would close down seventy-five percent of the state’s clinics; the remaining clinics would be concentrated in urban areas, leaving women in rural areas without any clinics nearby. The state responds that, even if the new requirements take effect and some clinics close, eighty-three percent of Texas women of child-bearing age will still live within 150 miles of an abortion clinic.

A federal appeals court upheld the new requirements. Earlier this year, the Supreme Court agreed to delay them from going into effect until it could rule on the clinics’ petition for review. Today it granted review, without acting on a challenge to a Mississippi law imposing a similar admitting-privileges requirement.

There are two main points of contention now before the Court. The first arises from the state’s insistence that the law was intended to protect women’s health. The lower court, the clinics contend, should not have deferred to the state’s justification for the law, without looking independently to see whether it actually does protect women. The state answers that it is enough for it to have a ”rational basis” for the new law; courts don’t need to go any further to decide, for example, which competing medical opinion is correct, because states have “‘wide discretion’ to pass medical regulations.”

According to the state, the only relevant question – and this is the second point of contention – is whether the new law imposes an “undue burden” on Texas women seeking abortions. While the state emphasizes the number of clinics that will remain open and their proximity to major metropolitan areas in Texas, the clinics urge the Court to look at the broader impact of the closures: the clinics that stay open, they say, simply won’t be able to meet the demand for their services. Indeed, they note, would-be patients currently have to wait three weeks for a first appointment at some clinics, and that will only get worse if more clinics go out of business. The net effect of the new restrictions, they warn, would for many women be the same as a complete ban on abortion: they “would delay or prevent thousands of women from obtaining abortions and lead some to resort to unsafe or illegal methods of ending an unwanted pregnancy.”

The Court’s acceptance of this case means that it will hear its first substantive case dealing with the legacy of Roe v. Wade since it handed down its decision in Gonzalez v. Cathart, a 2007 challenge to the law barring so-called “partial birth” abortions passed by Congress several years earlier.   Prior to that, the last major case dealing with a state-level law was Stenberg v. Carhart from 2000 which dealt with a similar “partial birth abortion” ban passed by Nebraska in the late 1990s. Before that, the last major case that dealt the issues flowing from Roe v. Wade, though, was Planned Parenthood v. Casey, which came down all the way back in 1992. In that time, litigation related to abortion regulations were largely relegated to the Federal District Courts and the Circuit Courts of Appeal, but there had largely been a stalemate on the issue for the better part of the decade in that the legal issues after Casey became more complex and the political will for further restrictions on abortion didn’t really exist for quite some time.

That stalemate began to break apart in the wake of the 2010 elections,  though, as Republican victories in several states emboldened pro-life activists to make a new push for means to undermine Roe that had previously been unavailable to them. The strategy that seems to have had the most success for them is the one exemplified in the Texas law, laws that purport to cloak laws impacting abortion clinics in general regulations regarding the practice of medicine. Using means such as requirements that doctors have hospital affiliations, or inspection regimes that would typically not have been applied to clinics outside the hospital setting, the clear goal seemed to be to make it more and more difficult for clinics to operate, especially clinics in more rural areas. Other laws included measures that required women seeking abortions to undergo mandatory ultrasounds regardless of whether the same was medically necessary, and some efforts were made to try to mandate that women be shown an ultrasound of their fetus prior to proceeding with the abortion. Inevitably, these laws were challenged in the Federal Courts, but the results were mixed and the state of the law began to become unsettled. For the most part, though, when these cases were presented to the Justices for review, the Justices were routinely denying the requests for appeal and letting the decisions below stand even in situations where there were arguably conflicts between and among the Federal Courts over just how far the states should be allowed to go with these new methods of trying to regulate abortion, attempts that many authors of the laws in question made no secret about being intended to effectively make it impossible for women in their state to obtain an abortion except in the most extreme circumstances. At some point, it was inevitable that the Court would accept one of these cases to try to resolve these issues, and many expected that this Texas law, or a related case dealing with a similar set of laws in Mississippi, would be the one that would finally get the Court to review the issue again for the first time in many, many years.

It’s truly impossible to say just how the Court might decide a case like this. For one thing, the issues have not been fully briefed before the Court yet, and oral argument has not taken place. Even after that is completed some time early in the Spring. The Supreme Court that decided the two Cathart cases has changed significantly in the time that has intervened, and it has changed even more in the 23 years since Casey was decided. Of the Justices that remain who heard all three of those cases, the one who is obviously Justice Anthony Kennedy. Kennedy was in the majority that upheld the Federal Partial Birth Abortion Ban in Gonzelez v. Cathart, and in the minority in the case that struck down the state-law ban on a similar law in Stenberg v. Cathart. In Planned Parenthood v. Casey, though, Kennedy was part of the plurality in the Court’s decision that largely upheld the central holdings of Roe v. Wade and its progeny but somewhat altered the standard of review for regulations dealing with that right. Given the fact, though, that none of the other Justices that joined Kennedy in that opinion are on the Court anymore it’s next to impossible to predict what that means for where he might come down in a case like this, other than to say that he is likely to be the lynch pin in the case as he has been in so many others over the years.

In any case, after a long respite the Supreme Court will be diving back into the abortion wars, and it will be doing so in an election year. This will be a case worth keeping an eye on, and you can track the filings in the case at the SCOTUSBlog information page.


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Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.