Abortion Clinic Restrictions Get U.S. Supreme Court Scrutiny

  • Court to review Texas law that could close 30-plus clinics
  • Ruling will be high court's first on abortion since 2007

Anti-abortion activists take part in the annual March for Life rally in front of the U.S. Supreme Court on Jan. 22, 2015, in Washington.

Photographer: MANDEL NGAN/AFP/Getty Images

The U.S. Supreme Court will rule on abortion rights for the first time in almost a decade after agreeing to decide whether Texas is violating the Constitution with a law that may close three-quarters of the state’s clinics.

The case will determine how much leeway the government has to regulate clinics in the name of protecting women’s health, when the effect is to leave some patients hundreds of miles away from the nearest provider.

Abortion-rights advocates called the case the biggest since 1992, when the court reaffirmed the constitutional right to end a pregnancy. The clash will help determine the fate of more than 200 abortion restrictions enacted since a Republican-led push began in 2011. The court will probably rule in June, in the midst of the presidential campaign.

The 2013 law would force clinics to meet hospital-like surgical standards and require abortion doctors to have admitting privileges at a local hospital. Texas says the rules safeguard patient safety, while opponents say the real aim is to reduce access to abortion.

“It would have devastating effects on women and families all throughout the state,” said Amy Hagstrom Miller, Chief Executive Officer of Whole Woman’s Health, which has three clinics in Texas and is the lead challenger to the law. “People would be driving hundreds of miles and would be kept from exercising their right to safe and legal health care.”

The New Orleans-based 5th U.S. Circuit Court of Appeals largely agreed with the state and upheld the rules.

‘Substandard Conditions’

“The common-sense measures Texas has put in place elevate the standard of care and protect the health of Texas women,” Texas Attorney General Ken Paxton said in a statement. “The state has wide discretion to pass laws ensuring Texas women are not subject to substandard conditions at abortion facilities.”

The Supreme Court has already intervened twice, in each case backing the clinics on a divided vote. In 2014 a 6-3 court blocked enforcement of some restrictions while the 5th Circuit considered the case. In June, after the appeals court ruled, the Supreme Court voted 5-4 to halt the law again, giving a reprieve to about 10 facilities that were slated to close.

The pivotal vote almost certainly will belong to Justice Anthony Kennedy. He was part of the group that blocked the Texas law, but he has a complicated history on abortion rights.

Sterile Environment

Kennedy was in the majority in the 1992 case, which said states can’t place an “undue burden” on abortion access until the point in a pregnancy when the fetus could live outside the womb. More recently, Kennedy wrote the 2007 decision that upheld a federal ban on a procedure opponents called “partial-birth abortion.”

Texas says its law improves patient care. The state says the admitting-privileges rule ensures qualified doctors and promotes continuity of care in the event of complications. Texas says the facility requirements provide a sterile environment for surgical abortions and protect patients from being treated in substandard clinics.

“Medical experts in this case testified to the benefits of these requirements and explained how they will improve the health and safety of women,” state officials led by Paxton said in court papers.

‘Blindly Defer’

Lawyers representing the clinics and doctors challenging the law say the state must show the regulations actually further its professed objective. In court papers, they argued that that under previous Supreme Court rulings, “courts should not blindly defer to legislative findings.”

Abortion-rights advocates say the Texas measure, if it took full effect, would cut to 10 what once were 42 abortion clinics in the state. All but one of those would be in state’s four biggest metropolitan areas -- Houston, Dallas, San Antonio and Austin -- and none would be in the western half of the state because the two clinics now in El Paso would have to close. The nearest Texas clinic to El Paso would be 550 miles (885 kilometers) away.

Texas is one of 10 states with admitting-privileges requirements and one of six that requires clinics to meet surgical-center standards, according to the Center for Reproductive Rights, which is representing the clinics and doctors. About half of those laws are currently in effect.

In upholding the Texas law, the 5th Circuit pointed to the availability of a clinic in Santa Teresa, New Mexico, about 12 miles from El Paso.

‘Short Distance’

“There is evidence that women in El Paso can travel the short distance to Santa Teresa to obtain an abortion and, indeed, the evidence is that many did just that,” even before the state sought to impose the new restrictions, the three-judge panel said.

The 5th Circuit ruling would also put restrictions on a facility in McAllen that is the sole clinic in Texas’s Rio Grande Valley. The panel said that clinic could stay open, though it could serve only patients from the four closest counties.

A different panel of the 5th Circuit blocked enforcement of a similar Mississippi law that would close that state’s only abortion clinic. Mississippi was seeking Supreme Court review of that ruling, but the high court took no action on the appeal, signaling it will consider only the Texas case.

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

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