Nov. 20 (Bloomberg) -- A divided U.S. Supreme Court let Texas enforce a law that requires abortion doctors to have admitting privileges at a local hospital, a measure that prompted at least a dozen clinics to close.
On a 5-4 vote, the justices yesterday left intact a federal appeals court decision that said the law could go into effect during a legal fight over its constitutionality. Abortion clinics had asked the Supreme Court to block the law.
The Oct. 31 appeals court ruling prompted women’s clinics in five cities to stop providing abortions. It also meant that women seeking an abortion 15 or more weeks into pregnancy must travel to Dallas or Houston, the only cities with open facilities that could legally perform those procedures.
The case split the Supreme Court along ideological lines, with Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Anthony Kennedy in the majority. Writing for three justices, Scalia said the clinics hadn’t met their “heavy burden” of showing the appeals court committed a clear legal error.
In dissent, Justice Stephen Breyer said the appeals court order leaves 24 counties without an abortion provider and “may substantially reduce access to safe abortions elsewhere in Texas.” Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined Breyer in dissent.
The justices didn’t directly rule on the constitutionality of the restrictions, an issue Breyer called a “difficult question.”
The law requires doctors to have privileges at a hospital within 30 miles (48 kilometers) of clinics where they perform abortions. The measure also puts new restrictions on drug-induced abortions, although those limits weren’t at issue in the Supreme Court appeal.
The clinics say facilities in Waco, Fort Worth, Killeen, McAllen and Harlingen have been forced to close, eliminating abortion access in those cities. The appeal says 20,000 women a year will lose access to abortion under the law and others will face delays, increasing the risk of complications.
“The shattering stories of women turned away at clinic doors and denied their constitutional right to abortion are already numerous,” said Nancy Northup, president of the Center for Reproductive Rights, which represents the suing clinics. “And they multiply every single day this underhanded law is enforced.”
Texas officials say the admitting-privileges requirement protects patients by serving as a check against incompetent doctors. The state also says the law promotes continuity of care by ensuring that doctors can stay with their patients if complications require hospitalization.
“This is good news both for the unborn and for the women of Texas, who are now better protected from shoddy abortion providers operating in dangerous conditions,” Texas Governor Rick Perry said in a statement.
Perry, a Republican, signed the new restrictions into law this year after Democrats, led by state Senator Wendy Davis, made a last-ditch effort to kill the measure with a filibuster.
Abortion clinics sued, and a federal trial judge in Austin struck down the hospital requirement, saying it would impose an “undue burden” on women’s access to abortion.
Three days later, the New Orleans-based 5th U.S. Circuit Court of Appeals let the law take effect. It said the state had made a “strong showing” that the measure probably would be upheld.
The clinics say the restrictions violate the 1992 Planned Parenthood v. Casey decision, which reaffirmed abortion rights and said officials can’t put an “undue burden” on women seeking the procedure.
“If Casey’s undue burden standard means anything, it must mean that a law that forces a third of the providers in the state to cease providing abortions and prevents approximately 20,000 women a year from accessing safe abortion services is unconstitutional,” argued the clinics, led by Planned Parenthood.
Texas Attorney General Greg Abbott said the measure “protects public health by fostering a woman’s ability to seek consultation and treatment for complications directly from her physician.”
The Supreme Court case is Planned Parenthood of Greater Texas Surgical Health Services v. Abbott, 13A452.
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