The battle over Texas' omnibus anti-abortion law began at the Texas Capitol in the summer of 2013, when pro-choice protesters wore orange to oppose the new restrictions. (Jen Reel)

Texas Doctors Ask SCOTUS to Stem Tide of Abortion Restrictions

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Texas abortion providers on Thursday called on the nation’s highest court to answer questions that have plagued legal challenges to restrictions on abortion care for decades: What constitutes an “undue burden” on people who seek abortion, and to what extent can states rely on claims about protecting health and safety in order to regulate the procedure?

“The state of Texas, as it was during Roe v. Wade, is at the heart of the battle,” said Nancy Northup, the president of the Center for Reproductive Rights (CRR), which is representing a group of independent Texas abortion providers in their ongoing legal challenge to House Bill 2, the state’s highly restrictive anti-abortion law.

“It is going to have an enormous impact, not just for Texas, but for women across the nation,” if the Supreme Court does not rule in abortion providers’ favor, said Northup. “Copycat laws around the nation will proliferate.”

Texas abortion providers’ writ of certiorari follows that court’s June ruling temporarily blocking major pieces of Texas’ abortion law. Lawyers for CRR told reporters that SCOTUS could take up the Texas abortion case as early as mid-October, though the court has no obligation to grant review in the case at all.

This formal petition for review comes more than a year after Whole Woman’s Health and a handful of independent abortion providers filed their second lawsuit against two components of HB 2. Specifically, the providers are challenging the requirements that abortion facilities meet expensive ambulatory surgical center standards and that physicians who perform abortions have admitting privileges at local hospitals.

The restrictions have led to the closure of more than half of the state’s abortion clinics since 2013, leaving large swaths of the state without any provider. By forcing Texans to travel sometimes hundreds of miles for an abortion, the law creates an undue burden for many who seek the procedure, plaintiffs say.

“I’ve said it before and I’ll say it again: These restrictions have nothing to do with protecting women and everything to do with closing down clinics and pushing abortion care out of reach.”

The state, however, maintains that the restrictions are necessary to protect “the health and safety of women,” despite opposition from major medical groups.

In early June, a three-judge panel of the U.S. Fifth Circuit Court of Appeals largely upheld HB 2’s surgical center standards and admitting privileges provisions in a ruling that would have resulted in the closure of all but nine Texas abortion facilities were it not for the Supreme Court’s emergency intervention. Currently, 17 abortion clinics remain open in the state, but should the law take full effect, more than 900,000 Texas women will live 150 miles or more from a provider.

“It’s been a long and arduous road to get to today’s filing, but that’s nothing compared to the obstacles that Texas women seeking reproductive health services will face if the Supreme Court of the United States denies our request and allows HB 2 to fully go into effect,” Amy Hagstrom Miller, president and CEO of Whole Woman’s Health and lead plaintiff in the case, said in a statement issued Thursday.

On top of the restrictions being unnecessary and burdensome for providers, Hagstrom Miller and other plaintiffs argue that the law and subsequent rulings upholding it, made by conservative federal appeals judges, ignore the practical and economic barriers Texans may face when being forced to travel for an abortion, such as transportation costs, child care, inability to take time off work and immigration status.

“I’ve said it before and I’ll say it again: These restrictions have nothing to do with protecting women and everything to do with closing down clinics and pushing abortion care out of reach,” Hagstrom Miller said. “When politicians force clinics to close, they multiply the devastating, albeit unnecessary, hurdles that Texas must overcome when seeking reproductive health care.”

The case against HB 2, should the Supreme Court decide to hear it, would be the first major abortion case brought before the high court in almost 25 years. In the hallmark 1992 decision in the Planned Parenthood v. Casey case, five Supreme Court justices ruled that state restrictions on abortion are constitutional as long as they don’t create an “undue burden” for those seeking the procedure. A restriction becomes an undue burden, the justices wrote, “if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.”

In the last several years, a number of states, including Texas, have passed a landslide of restrictions both on those who seek an abortion and on the doctors and nurses who provide the procedure. If the Supreme Court takes up this challenge to HB 2, it could have long-term effects on how, or whether, other states pass stringent abortion restrictions in the future.

“We expect the decision in this case will be a definitive statement of how the undue burden test should be applied going forward,” said CRR’s senior counsel Stephanie Toti, who has argued in federal court on behalf of Texas abortion providers. “The test needs to have some teeth to it to be a real, meaningful protection for the right that the Supreme Court has consistently recognized and reaffirmed for decades.”