International Campaign for Women's Right to Safe Abortion
16 November 2015

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Feature: US Supreme Court to Review Texas Clinic Shutdown Law

Deceptive law would close all but 10 clinics in Texas and restrict access to safe, legal abortion care for millions of women.

The U.S. Supreme Court agreed on 13 November 2015 to review a Texas state anti-abortion law passed in 2013, known as HB2, that singles out abortion providers for medically unnecessary regulations. The law was intended to shut down clinics that provide safe, legal abortion services under the guise of improving women's health. The case challenges two provisions of HB2. The first provision requires that all abortion providers obtain local hospital admitting privileges, a mandate that has already forced the closure of over half the clinics in the state. The second provision requires every reproductive health care facility offering abortion services to meet the same hospital-like building standards as an ambulatory surgical center, which would lead to the spending of millions of dollars to implement medically unnecessary facility updates. The law gave clinics only 22 days to meet the requirements involved, at a cost of millions of dollars. The case has been in and out of the court system facing challenges by the clinics involved ever since.

Along with the Texas women's health care providers, t he American Medical Association and the American College of Obstetricians and Gynecologists opposed the law and submitted a joint amicus brief to the June hearing of the Fifth Circuit, stating that "HB2 does not serve the health of women in Texas but instead jeopardizes women's health by restricting access to abortion providers." Medical experts confirm that legal abortion care in the U.S. is extremely safe , and that laws like Texas' would do nothing to make it safer.

From a  study by ANSIRH (Advancing New Standards in Reproductive Health), 6 December 2014

In a June 2015 decision , however, the U.S. Court of Appeals for the Fifth Circuit upheld the law. When it was argued that it would lead to the closure of almost all but 10 of the clinics in the state, the Court of Appeals responded that women could travel to New Mexico to access their constitutional right to safe and legal abortion, the neighboring state, where there are no comparable requirements. For many women, however, this would involve a round-trip of over 1,000 miles, at additional cost and time.

It was at that point that the Center for Reproductive Rights, representing the Texas women's health care providers, announced their plans to appeal the case to the U.S. Supreme Court. "The Supreme Court's prior rulings do not allow for this kind of broadside legislative assault on women's rights and health care," Nancy Northrup, head of the Center for Reproductive Rights, said. "We now look to the Justices to stop the sham laws that are shutting clinics down and placing countless women at risk of serious harm."

In a 5-4 order , the U.S. Supreme Court agreed at the end of June to suspend the  ruling  by the U.S. Court of Appeals for the Fifth Circuit, which kept the clinics open until the case could be filed and the Supreme Court justices could decide whether to review the case. On 3 September 2015, the case, Whole Woman's Health v. Cole, was brought by the Center for Reproductive Rights on behalf of the coalition of women's health providers. On 13 November 2015, the Court agreed to hear the case. The Court is asked to permanently block enforcement of the two most harmful components of HB2. Oral arguments are expected to be scheduled for 2016.

Since Roe v. Wade was decided in 1973, the U.S. Supreme Court has continually maintained that women have a constitutional right to decide whether to end or continue a pregnancy - protected by the 14th Amendment to the U.S. Constitution, on the right to liberty, which is central to personal dignity and autonomy.

Further, the Court's 1992 decision in Planned Parenthood v. Casey reaffirmed a woman's constitutional right to abortion and rejected medically unnecessary regulations meant to create substantial obstacles for a woman seeking to end a pregnancy. Justices Kennedy, O'Connor, and Souter made clear that "these matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the 14th Amendment."

Said Amy Hagstrom Miller, head of Whole Woman's Health, one of the Texas clinics: "Today, my heart is filled with hope. 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. I have hope for my staff members, who, for years, have poured themselves into providing Texas women with high-quality and comprehensive reproductive health care. And most of all, I have hope for the families and communities all across Texas who now may be able to get the safe and comprehensive care they need from a clinic they trust."

Hallways like this one at Whole Woman's Health would
have to  be widened under the anti-abortion legislation in
Texas.  Photo: Center for Health Journalism 2014

Clinic shutdown laws have swept the U.S. South in recent years, threatening to further devastate abortion access in a region already facing limited availability of reproductive health care services. The last abortion clinic in Mississippi is awaiting a  decision  on whether the U.S. Supreme Court will review its state's clinic shutdown, while health care providers in Louisiana are awaiting a federal court ruling which could shutter all but one clinic in the state. Courts have blocked similar measures in Oklahoma , Tennessee , Alabama, Wisconsin and Kansas.

Need for the federal Women's Health Protection Act
Harmful and unconstitutional restrictions like these further underscore the need for the federal  Women's Health Protection Act  (S. 217/HR. 448) - a bill that would prohibit states like Texas from imposing unconstitutional restrictions on reproductive health care providers that apply to no similar medical care, interfere with women's personal decision making, and block access to safe and legal abortion services.

T he bill was first introduced in November 2013, a Congressional hearing was held on the bill in mid-2014 and the bill was re-introduced on 21 January 2015, the anniversary of Roe v. Wade (1973). Elected officials in Austin  and Houston  have called for the repeal of HB2 and the passage of the Women's Health Protection Act.

Case history: Whole Woman's Health v. Cole (formerly Whole Woman's Health v. Lakey)
Following a lawsuit brought by the Center for Reproductive Rights on behalf of Whole Woman's Health and several other Texas health care providers in April 2014, a federal district court blocked two of the most harmful restriction of Texas' House Bill 2 (HB2) in late August 2014: the ambulatory surgical center requirement and the admitting-privileges requirement.

The U.S. Court of Appeals for the Fifth Circuit stayed that decision in large part on 2 October 2014, allowing the requirements to take effect immediately. Because forcing hospital-style surgery center building and staffing requirements on every clinic would amount to a multi-million dollar tax on abortion services, all but 7 reproductive health care facilities in the state were prevented from offering safe and legal abortion services for 12 days. On 14 October 2014, the U.S. Supreme Court reinstated the injunction in large part, allowing many of the previously closed clinics to reopen their doors while the state's appeal moved forward.

On 9 June 2015, the Fifth Circuit's final decision in the appeal once again upheld the state restrictions in substantial part, this time threatening to shutter all but 10 abortion providers in the state - one of which would be subject to severe restrictions that would drastically limit its ability to provide abortion care. Once again, the U.S. Supreme Court stepped in to block the Fifth Circuit's decision and allow the clinics to remain open while the legal challenge continued.

From press releases by the Center for Reproductive Rights