Updated Monday, February 29, 2016 @ 8:00 PM
The Supreme Court this week will hear arguments in the Whole Women’s Health v. Hellerstedt case, which challenges the 2013 House Bill 2 Texas law threatening to close 13 of the 20 women's health care clinics that remain open in Texas. In addition to other reproductive health care services, those clinics provide abortions in the state.
This case challenges the constitutionality of two provisions of the HB2 law regulating abortion in Texas. One provision requires doctors who perform abortions to have privileges to admit patients to a local hospital; the other requires abortion clinics to have facilities that are comparable to outpatient surgical centers. Inside the courtroom, lawyers for the state of Texas' tell the judges HB2 provisions are constitutional because they are intended to protect women’s health. Outside the courtroom, state leaders like Texas Governor Greg Abbott have admitted that the law is intended to limit abortion as much as possible.
Last June, the U.S. Court of Appeals for the Fifth Circuit overturned a federal district judge's October 2013 ruling that HB2 violates the constitutional rights of women who seek an abortion as one of their reproductive health care options. The Fifth Circuit's ruling would have allowed the state to immediately enforce all provisions of HB2.
Immediately following that Fifth Circuit ruling, the Supreme Court granted plaintiff's petition asking the high court to temporarily blocked that appellate court's ruling, and Texas' enforcement of the HB2 law, pending appeal. The plaintiffs argue the law offers little to no medical benefits to women and that the real intent of the law is to close clinics and limit women’s access to abortions.
The Fifth Circuit gave a sweeping 56 page endorsement of Targeted Regulation of Abortion Providers (TRAP) law legislation anti-abortion lawmakers in Texas and other states have adopted in recent years to make abortion unavailable.
Original Post Date June 29, 2015
In a 5-4 order, the Supreme Court today temporarily blocked a ruling from the U.S. Court of Appeals for the Fifth Circuit that was set to close all but nine abortion clinics in Texas by July 1. All 20 abortion clinics open in Texas today will be able to remain open as a result of this temporary order. The Chief Justice, Justice Scalia, Justice Thomas, and Justice Alito opposed the application, according to the Supreme Court's order about the case, Whole Woman's Health, et al. v. Cole, Comm'r, TX DHS, et al.
The SCOTUS order suspends the Fifth Circuit ruling while plaintiffs petition the Supreme Court to review their case against two provisions of the 2013 omnibus anti-abortion bill, House Bill 2. The Texas law requires "nearly all Texas facilities that perform abortions to operate like hospital-style surgical centers" and also requires doctors who perform abortions to have admitting privileges at local hospitals. Passed by anti-abortion politicians under the guise of protecting women's health and safety, Texas’ H.B. 2 has already forced half of the state's abortion clinics to close, down from 41 clinics in 2011. If the law takes full effect, “only seven facilities and a potential eighth will exist in Texas, leaving nearly a million women at least 150 miles from the nearest abortion provider.
Earlier this month, the Fifth Circuit issued an opinion that would have left Texas, a state with 5.4 million women of reproductive age, with fewer than 10 abortion clinics. Had the final provision of HB 2, the medically unnecessary, ambulatory surgical center requirement, been allowed to take effect on July 1, these remaining clinics would be limited to four metropolitan areas, Austin, Dallas, Fort Worth, Houston and San Antonio, decimating access large portions of the state and endangering the health and safety of millions of Texas women.
During a June 2013 special legislative session, Texas enacted HB2, one of a number of Targeted Regulation of Abortion Providers (TRAP) laws passed by anti-abortion lawmakers intent on blocking women's access to abortion. The Texas legislature tried to pass HB2 legislation late the regular 2013 legislative session but massive protests at the state capitol and an 11 hours filibuster by Sen. Wendy Davis (D) blocked anti-abortion Republican lawmakers, who control the state senate, from passing that bill during the closing hours of the regular session. Texas Governor Perry immediately called the legislature back into a special session, specifically to pass House Bill 2.
HB2 is crafted to appear like a health regulation, permitted by U.S. Supreme Court decisions. The two provisions of HB2 challenged in Whole Woman’s Health include a requirement that abortion doctors have admitting privileges in a nearby hospital, and a list of expensive architectural and other requirements that abortion clinics must comply with in order to operate. There is little evidence, however, that either provision actually advances the goal of making abortion safer for women.
In 1973, the Roe v. Wade decision handed down by the Supreme Court effectively struck down laws all 50 states that banned abortion. The Court held that a woman's right to an abortion fell within the right to privacy (recognized in Griswold v. Connecticut) protected by the Fourteenth Amendment. The decision gave a woman a right to abortion during the entirety of the pregnancy and defined different levels of state interest for regulating abortion in the second and third trimesters.
The Court held that, in regard to abortions during the first trimester, the decision must be left to the judgment of the pregnant woman’s doctor. In regard to second trimester pregnancies, states may promote their interests in the mother’s health by regulating abortion procedures related to the health of the mother. Regarding third trimester pregnancies, states may promote their interests in the potentiality of human life by regulating or even prohibiting abortion, except when necessary to preserve the life or health of the mother.But in its 1992 Planned Parenthood v. Casey decision, the Supreme Court essentially reaffirmed its 1973 Roe v. Wade finding that the state has an interest in regulating abortions. Pennsylvania had enacted a law with several provisions for women to meet before receiving an abortion, including:
- Physicians had to make women aware of the medical risks of abortion and information about fetal development
- There had to be a mandatory 24 hour waiting period after the women received the information
- Abortion clinics were required to report certain information about the women receiving abortions, such as the age of the mother, the gestational age of the pre-born child, and the reason for the abortion
- There was a requirement that married women must notify their spouses
- A minor seeking an abortion required the consent of one parent (the law allows for a judicial bypass procedure).
More than a dozen health care providers in Texas joined forces during the summer of 2013 to file a lawsuit against the new HB2 abortion restrictions the state legislature enacted that summer. Reproductive health advocates asked a federal district court to block two provisions of House Bill 2, the anti-choice
In October 2013, federal District Judge Lee Yeakel struck down the provisions of HB2 requiring physicians performing abortions must have hospital admitting privileges and that facilities where abortions are preformed must operate like hospital-style surgical centers. Judge Yeakel determined “there is no rational relationship between improved patient outcomes and hospital admitting privileges,” and he reached similar conclusions with respect to the portions of the law regulating clinic facilities. Judge Yeakel in his ruling said the reduced access to abortion “almost certainly cancel[s] out any potential health benefit associated with” HB2 because of “higher health risks associated with increased delays in seeking early abortion care, risks associated with longer distance automotive travel on traffic-laden highways, and the act’s possible connection to observed increases in self-induced abortions.”
In early June, a United States Court of Appeals for the Fifth Circuit panel of three George W. Bush-appointed judges handed down a sweeping 56 page endorsement of the tactics anti-abortion lawmakers in Texas and other states adopted in recent years in an effort to close all abortion clinics. It touches upon a number of procedural topics while also laying out a brief history of the Supreme Court’s abortion jurisprudence.
With one narrow exception, the United States Court of Appeals for the Fifth Circuit’s decision in Whole Woman’s Health is a total defeat for abortion providers who hoped to overcome a Texas law that will shut down most of the state’s abortion clinics. Worse for women seeking an abortion, the Fifth Circuit’s opinion would give many other states broad discretion to restrict access to abortion if its reasoning is ultimately adopted by the Supreme Court.
One aspect of the Fifth Circuit’s ruling is particularly significant, however, because it could effectively render what remains of Roe v. Wade moot, at least in the context of facial legal challenges.
Arguments before the Supreme Court will likely turn on whether the state of Texas imposed an "undue burden" on abortion providers. In 1992, the Supreme Court ruled that while the individual states could impose restrictions on abortion, they could not pass laws that posed an undue burden on a woman's access to an abortion. But that left an important question, what constitutes an undue burden?
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