There’s nothing fancy about the Whole Woman’s Health abortion clinic on the south side of San Antonio.

A room where abortions are performed at Whole Woman’s Health in San Antonio
A room where abortions are performed at Whole Woman’s Health in San Antonio
Photographer: Matthew Busch/Bloomberg

A packed 28-seat waiting area leads to a suite of small rooms where a doctor performs procedures that take as little as five minutes. Staffers serve tea and snacks to women on recliners in a darkened recovery room.

The clinic’s simplicity will be at issue next week when the U.S. Supreme Court, still reeling from the Feb. 13 death of Justice Antonin Scalia, considers a Texas law requiring abortion clinics to be equipped and operated more like a hospital. The state says the law protects women’s health; abortion-rights advocates say it’s unneeded, except as a way to force most clinics to close.

Whole Woman’s Surgical Center, an ambulatory surgical center owned by Whole Woman’s Health
Whole Woman’s Surgical Center, an ambulatory surgical center owned by Whole Woman’s Health
Photographer: Matthew Busch/Bloomberg

For Whole Woman’s Health, which is leading the legal challenge to the law, the measure would mean shifting San Antonio patients to its ambulatory surgical center, a separate building that serves fewer people at a higher cost.

"It actually makes absolutely no sense," Whole Woman’s Health’s founder, Amy Hagstrom Miller, said from her small office in the clinic. "The whole building is set up assuming that people are going to have surgery, like they’re actually going to be cut open."

The case, the Supreme Court’s first abortion showdown in almost a decade, has taken on a new tint after Scalia’s unexpected death. His absence eliminates the possibility of a 5-4 anti-abortion victory that would have nationwide implications.

One of two operating rooms at Whole Woman’s Health Surgical Center
One of two operating rooms at Whole Woman’s Health Surgical Center
Photographer: Matthew Busch/Bloomberg

The most anti-abortion forces can get now is probably a 4-4 split that wouldn’t set a nationwide precedent but would leave intact a federal appeals court decision that upheld the Texas law. The high court is facing the prospect of a series of 4-4 deadlocks as Senate Republicans refuse to confirm a Scalia replacement during President Barack Obama’s last year in office.

The pivotal vote in the Texas case probably belongs to Justice Anthony Kennedy, who may join the court’s four Democratic appointees in a 5-3 ruling to throw out part or all of the law.

Admitting Privileges

The Supreme Court will also consider the state’s new requirement that doctors who perform abortions have admitting privileges at a local hospital. A decision invalidating the Texas rules would call into question some of the 200-plus abortion restrictions enacted around the country since a Republican-led push 2011. The laws include limits on pill-induced abortions.

Texas is one of 14 states that require abortion doctors to have some affiliation with a local hospital and one of 22 that impose at least some standards that are comparable to those for surgical centers, according to the Guttmacher Institute, a reproductive-health research organization that says the requirements are unnecessary.

Opponents say the combined effect of the Texas restrictions would be to close three-quarters of what once were more than 40 clinics, including virtually all of the ones outside the four largest metropolitan areas. The law is now partially in effect.

Ambulatory surgical centers, or ASCs, are places where people go for procedures including knee replacements or colonoscopies without being admitted to a hospital, with a greater risk of infection.

Texas’ requirements for ASCs, which abortion clinics would have to follow, are many and varied. The 114 pages of licensing rules dictate the width of hallways and doors, the emergency equipment that must be available beside each bed, the number of nurses who must be on duty, and even the temperature range for particular rooms. Patients must be transported on gurneys, and operating rooms must meet pages of requirements for space and equipment.

Defenders say the Texas law isn’t aiming to stop abortion, just to make the procedure safer. It was enacted less than two months after the 2013 murder conviction of Kermit Gosnell, the Philadelphia doctor who had been performing late-term abortions in a squalid clinic.

"Unfortunately, because places like that exist, laws and legislation have to happen to make sure that those doctors are held to that high standard," said Kellie Gretschel, executive director of the San Antonio Coalition for Life, an anti-abortion group that organizes prayer vigils outside clinics in the city. The women who visit clinics "deserve the best care," she said.

Doctor Competency

The state says it has ample evidence that its requirements safeguard women’s health. The admitting-privileges rule helps guarantee physician competency and continuity of care in case of hospitalization, Texas says in court papers. The clinic standards ensure the availability of emergency equipment and properly trained staff to handle complications, the state argues.

More broadly, Texas says courts shouldn’t second-guess lawmakers on the necessity of health measures. Supreme Court precedent "allows legislatures to resolve medical disputes about the benefits of abortion regulations," Texas Solicitor General Scott Keller wrote.

The Whole Woman’s Health ASC in San Antonio was the first of its kind in Texas. Hagstrom Miller opened it in 2010 to comply with a 2003 Texas law requiring all abortions after the 15th week of pregnancy to be performed in a surgical center. She said she decided to rent an existing surgical center because she couldn’t get a loan to build a new one.

The surgical center is actually smaller than the clinic that sits across a small parking lot. The room where patients wait before the procedure and recover afterward can accommodate four gurneys, each space with its own oxygen supply and other dedicated emergency equipment that clinic officials say is never used. Spotlights, monitors, wires and tubes dominate the two operating rooms.

40 Percent More

Hagstrom Miller said the facility costs 40 percent more per patient than her traditional clinic and would have to perform 3,000 to 3,500 abortions a year to break even. She says the business has lost $850,000 on the ASC since it opened.

"It’s been a big struggle just to keep the doors open," Hagstrom Miller said.

The facility is now one of three ASCs that provide abortions in San Antonio. Across town, Planned Parenthood opened a two-story, $6.5 million facility last year, though not until local opposition had caused months of delay.

The Supreme Court has twice already signaled concerns about the Texas law’s surgical-center requirements. In June, the court voted 5-4 to block the appeals court ruling that largely upheld the law. The high court order, which came with Kennedy’s support, gave about 10 clinics a reprieve by preventing the ASC restriction from taking effect while the litigation plays out.

Other State Laws

Abortion-rights advocates hope that order is a sign that Kennedy views Texas as having gone too far. If he does, the court’s ruling could cast doubt on other state laws whose professed aim is to protect women’s health.

Should Kennedy back the law in a 4-4 split, it would force Whole Woman’s Health and other Texas abortion providers to start complying with the ASC requirement. The ruling also would apply in Mississippi and Louisiana.

It would leave the Whole Woman’s Health ASC in San Antonio as one of nine or 10 facilities to serve the 70,000 women who seek an abortion every year in Texas.

"It’s hard to fathom, really," Hagstrom Miller said. "Because of our mission, we’ve got to figure out how to make this building work."

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