Supreme Court to look at tougher abortion clinic rules in Texas

At issue is whether Texas regulations impose an unconstitutional burden on a woman to exercise her right to end her pregnancy.

Jonathan Ernst/Reuters/File
Pro-choice protesters block the way of the anti-abortion March for Life at the US Supreme Court building in Washington on Jan. 22, 2015. On Friday, the high court took up a major new abortion case, agreeing to hear a challenge by abortion providers to parts of a restrictive, Republican-backed Texas law that they contend are aimed at shutting clinics that offer the procedure.

Amid a blitz of new state-imposed regulations on abortion clinics, the US Supreme Court on Friday agreed to examine whether such restrictions enacted in Texas rise to the level of imposing an undue burden on a woman’s constitutional right to end her pregnancy.

The high court made the announcement in a one-line order. Oral argument will likely be heard early next year with a decision issued by late June.

At issue is whether Texas can require all abortion clinic doctors to obtain admitting privileges at a hospital within 30 miles of a clinic as a condition of the clinic receiving a license to conduct abortions.

The case also involves a challenge to a requirement that abortion clinics maintain the standards of an ambulatory surgical center.

Such standards are more demanding and more expensive than the pre-existing requirements for abortion clinics. The stricter requirements and admitting privileges regulation have forced a large number of clinics in Texas to close.

Before enactment of the Texas regulations, there were more than 40 abortion clinics in the state. If the regulations are upheld by the Supreme Court, experts say fewer than 10 clinics will remain.

The high court showdown over hospital admitting privileges and surgical center standards comes amid a proliferation of new abortion regulations passed at the state-level by Republican-controlled legislatures. They include beefed up waiting periods, ultrasound requirements, and restrictions on the use of abortion-inducing drugs.

Federal lawmakers are also weighing in. Earlier this year, the Republican-controlled House of Representatives passed a ban on abortions performed after 20 weeks.

Women’s rights groups and reproductive health organizations denounce such efforts by conservative lawmakers. They say they are aimed not at protecting women’s reproductive health but at making it more difficult for women to obtain abortions.

The Supreme Court has upheld a right to abortion, including barring measures that pose an undue burden on a woman’s ability to end her pregnancy before viability.

But the Supreme Court also has said that not every hurdle imposed on those seeking abortions is an unconstitutional burden. It is in that gray area where the battle over hospital admitting privileges and surgical center standards is being fought out.

There are currently 11 states with admitting privilege requirements for abortion clinics, according to the Guttmacher Institute, a research organization that tracks reproductive health issues.

Of those 11 states, regulations in more than half have been temporarily blocked pending further action in the courts.

Some 24 states have passed regulations requiring abortion clinics to maintain facilities equivalent to an ambulatory surgical center. Of those states, regulations in two have been temporarily blocked in the courts, according to the Guttmacher Institute.

Advocates for women’s rights and reproductive rights praised the high court action in agreeing to take up the Texas case.

“Today the Supreme Court took an important step toward restoring the constitutional rights of millions of women, which Texas politicians have spent years dismantling through deceptive laws and regulatory red tape,” Nancy Northup, president and CEO of the Center for Reproductive Rights said, in a statement.

“For more than four decades, the Supreme Court has agreed that the US Constitution protects every woman’s right to make her own decisions about her health and family,” Ms. Northup said. “Now the court must reject the schemes of politicians who believe the Constitution and the court’s precedents do not apply to them.”

Abortion opponents also praised the high court for agreeing to take up the issue.

“Today the Supreme Court made the right decision to hear this case and will hopefully let logic and reason prevail in their final decision,” Jeanne Mancini, president of the March for Life Education & Defense Fund, said in a statement.

“Abortion advocates often equate access to abortion with women’s health, but sadly are willing to lower the bar on abortion clinic standards,” she said. “Duly elected Texas legislators spoke strongly when they moved to protect women and save lives.”

Texas officials defend their abortion clinic regulations as measures that will improve women’s health and safety, rather than undermine it.

Others dispute that claim.

“When state legislatures enact laws that restrict access to abortion without any valid medical justification, they jeopardize women’s health. Texas is one of a number of states that has enacted such legislation,” wrote Kimberly Parker in a friend of the court brief filed on behalf of the American College of Obstetricians and Gynecologists, the American Medical Association, and two other medical groups.

Ms. Parker said the Texas hospital admitting privileges requirement and the surgical center regulations were contrary to accepted medical practice and not based on scientific evidence.

“They fail to enhance the quality or safety of abortion-related medical care and, in fact, impede women’s access to such care by imposing unjustified and medically unnecessary burdens on abortion providers,” Parker said in her brief.

Texas Solicitor General Scott Keller defended the new Texas requirements in his brief to the court. He said the new regulations “raise the standard of care for all abortion patients.”

He added: “Medical experts in this case testified to the benefits of these requirements and explained how they will improve the health and safety of women.”

Stephanie Toti of the Center for Reproductive Rights responded in her brief that Texas officials were being “willfully blind to the impact that closure of more than three-quarters of Texas’ abortion facilities will have on the health and rights of Texas women.”

Texas officials are downplaying the clinic closures, saying even if only 10 clinics remain open statewide, every major urban area in the state will retain at least one abortion clinic. Such closures would require some women to travel as much as 150 miles to reach a clinic.

Ms. Toti noted that before passage of the new regulations Houston had 10 clinics. If the regulations are upheld by the high court only two will remain to serve a city of six million.

Toti said the federal appeals court that upheld much of the Texas regulatory scheme had rendered the Supreme Court’s established undue burden standard “a toothless protection.”

The Texas case began when four abortion providers sued to block implementation of the new clinic regulations. The lead plaintiff in the case is Whole Woman’s Health.

“Today, my heart is filled with hope,” Amy Hagstrom Miller, president and CEO of Whole Woman’s Health, said in a statement.

“Although this is the first step in a much longer process, I am hopeful that the Supreme Court will uphold the rights that have been in place for four decades and reaffirm that every woman should be able to make her own decision about continuing or ending a pregnancy.”

The group, Texas Right to Life, said the Supreme Court case would expose inconsistencies in the position of abortion providers.

“On the one hand, the abortion industry clamors for uninterrupted taxpayer funding for alleged ‘women’s healthcare,’ denying they use fungible funds for abortion,” the group said in a statement.

“On the other hand, the abortion industry insists on the right to operate in the absence of the basic health and safety standards to which similar medical professions are held,” the group said.

The high court was also considering whether to take up a case examining an admitting privileges requirement for abortion clinics in Mississippi. The court did not mention the Mississippi case on Friday and it is possible that the case may be held aside pending the outcome of the Texas case.

The undue burden question in the Mississippi case is particularly stark. Mississippi currently has only one abortion clinic in the entire state. It operates in Jackson and employs three doctors. One of the doctors already has hospital admitting privileges. The other two do not.

After the state legislature passed the new abortion clinic law in 2012, the two other doctors at the clinic sought admitting privileges from seven local hospitals near the clinic.

None of the seven hospitals was willing to grant the doctors admitting privileges because they performed abortions. The action set the stage for closure of the state’s only abortion facility.

State officials sought to defend the closing of the clinic by suggesting that women seeking an abortion could drive to a clinic in a neighboring state.

A federal judge in Mississippi blocked the closure, allowing the clinic to continue to operate. That action was upheld by an appeals court panel.

“A state cannot lean on its sovereign neighbors to provide protection of its citizens’ federal constitutional rights,” the appeals court said.

The Mississippi case is Currier v. Jackson Women’s Health Organization (14-997).

The Texas case is Whole Woman’s Health v. Cole (15-274).

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