The fight over abortion access in Texas continues, now with a nudge from the U.S. Supreme Court. On Tuesday, the Court told Texas it has until Thursday at noon to respond to an emergency application filed Monday on behalf of Texas abortion providers. They're seeking to halt House Bill 2, a law which would force most of the state's abortion clinics to shut down by setting up unnecessary yet costly regulatory requirements.
Last week the 5th Circuit Court of Appeals temporarily upheld the law, which stipulates that all abortion clinics must meet standards set up for major surgical centers, even if the clinic does not perform surgical abortions. Once Texas responds this week, the Supreme Court will decide whether to vacate the 5th Circuit's decision.
That decision "is expected to mean that only seven or eight clinics located in the largest cities in Texas will remain open," notes SCOTUS blogger Lyle Denniston. "Not long ago, Texas had more than forty clinics operating throughout the state."
Another facet of HB2 contributed to many of the closures. Under this requirement—upheld by the 5th Circuit last year—all abortion clinc doctors must have admitting privileges at a hospital within 30 miles. The ostensible point of the admitting privileges requirement is to ensure women's safety in case of an emergency, but considering a) major complications from abortion are rare, b) women experiencing major complications wouldn't be turned away from a hospital simply because their abortion doctor lacked admitting privileges, c) many clinics in rural Texas were not located within 30 miles of a hospital, and d) hospitals routinely refuse to grant admitting privileges to abortion clinic doctors, the more realistic reason behind the law is to shut down abortion clinics in the state.
But the 5th Circuit held that the requirement was valid—that is, it didn't pose an "undue burden" on women seeking abortion, the prevailing legal standard for determining whether an abortion restriction passes constitutional muster. The court didn't issue a final decision on the constitutionality of the requirement that all clinics be remodeled to meet surgical-center standards—upgrades projected to cost as much as $1 million per clinic—but it does allow the regulation to be enforced while the matter of constitutionality is being resolved.
In its appeal to the Supreme Court yesterday, the Center for Reproductive Rights, which is leading the clinics' legal challenge, assert that the Fifth Circuit's order "was based on a demonstrably wrong application of the undue burden standard." More than 900,000 Texas women "now reside more than 150 miles from the nearest Texas abortion provider, up from 86,000 prior to the enactment of the challenged Act," it points out.
"Defendants… contend 'rational speculation that the regulations might provide a health benefit is sufficient to deprive millions of Texas women of meaningful access to abortion services," it continues.
Ignoring foundational principles of constitutional law, the Fifth Circuit adopted Defendants' argument, holding that the challenged requirements may be enforced without any inquiry into whether the requirements further the State's aims. But this Court's precedents make clear that the government may not restrict a fundamental liberty based on rational speculation alone. Rather, there must be a closer fit between the ends sought to be achieved and the means selected to do so.
During last year's challenge, the Supreme Ccourt declined to do vacate the 5th Circuit's ruling. However, the law's impact on abortion access in Texas has become more profound since then. A spokeswoman for the Center for Reproductive Rights speculated that this could alter the Court's thinking, though she said the organization has no expectations one way or the other.