In a “friend of the court” brief, the Obama administration is urging the Supreme Court to reject a Texas law whose provisions have already shut down half the state’s abortion clinics and could shut down half the rest if upheld. If the court rules in favor of the law, it would be the most important ruling on abortion in two decades and have an immense detrimental impact on the availability of the procedure not just in Texas but also throughout the nation.
Expert observers expect a 5-4 decision, with Justice Anthony Kennedy being the determiner of which way that ruling goes.
The amicus brief was one of 45 submitted on the subject to the court Monday by advocacy groups, religious leaders, government agencies and others. The court is scheduled for oral arguments March 2.
U.S. Solicitor General Donald Verrilli, Jr. wrote in the government’s brief that restrictions in the 2013 law—H.B. 2 —“do not serve—in fact, they disserve—the government’s interest in protecting women’s health, and they would close most of the clinics in Texas, leaving many women in that State with a constitutional right that ‘exists in theory but not in fact.’”
Texas officials have claimed women’s health justifies the restrictions in H.B. 2. But Verrilli noted that there is no Texas law mandating similar restrictions for other outpatient procedures—‘such as colonoscopy, which has a much higher rate of complications than abortion does.”
The case in question is Whole Woman’s Health v. Cole. A three-judge panel of the Fifth Circuit Court of Appeals ruled that H.B. 2 is sound. It mandates all Texas abortion clinics to meet standards for “ambulatory surgical centers,” including regulations concerning buildings, equipment and staffing. In addition, it requires doctors who perform abortions to have admitting privileges at a hospital within a 30-mile radius of their clinic.
Ten states have enacted the admitting privileges provision, but the courts have blocked implementation in six of them. Six states have enacted the ambulatory-care standards. The courts have blocked implementation in two of them.
There are two major issues under consideration. In 1992, the Supreme Court ruled in Planned Parenthood v. Casey that lower courts must decide whether any abortion-restricting regulation truly meets the government’s interest in promoting health and does not impose an “undue burden” on women seeking to terminate their pregnancies. The second matter is whether the Fifth Circuit wrongly decided that Texas can impose standards that greatly reduce the availability of abortion.
If the court rules to uphold the Fifth Circuit’s ruling without qualifications, it could mean a de facto end of abortion services in those states where lawmakers keep finding ways to make abortion more difficult and expensive to obtain even though the procedure would remain technically legal.
Alexa Ura reports at the Texas Tribune:
If the court upholds the restrictions, Texas would be left with 10 abortion clinics—down from more than 40 clinics open before the abortion law was passed in 2013.
Five of the remaining clinics would be Planned Parenthood facilities. But Cecile Richards, president of Planned Parenthood Federation of America which also filed an amicus brief, said those facilities would not be able to meet the demand in Texas if the abortion law is upheld.
“Texas paints a grim picture of what will become a reality across the U.S. if the Supreme Court upholds this clinic shutdown law,” Richards said during the press call.
A ruling in the case is expected in June.