November 14, 2013 — The Texas attorney general's office on Tuesday filed a response to a request from abortion providers that the Supreme Court block enforcement of a state law (HB 2) requiring physicians who provide abortions to have admitting privileges at nearby hospitals, the Texas Tribune reports (Aaronson, Texas Tribune, 11/12).
Late last month, the 5th Circuit Court of Appeals ruled that the law's admitting privileges requirement and another provision requiring physicians be present when administering medication abortion could take effect while the case is appealed. The court scheduled an expedited hearing for January, but several clinics in the state had to stop offering abortion services once the law took effect.
Last week, a Planned Parenthood affiliate and several other women's health care providers filed an emergency application with the Supreme Court to block enforcement of the law (Women's Health Policy Report, 11/4). Justice Antonin Scalia, who is considering the plaintiffs' request, ordered the state to respond by Nov. 12.
In the response, the state disputes evidence presented by the plaintiffs that 20,000 women will be affected by the end of abortion services at 13 clinics that are unable to meet the admitting privileges requirement. "The applicants focus almost exclusively on their claim that 'approximately 20,000 Texas women' will be unable to obtain abortions each year on account of HB2's hospital-admitting privileges requirement," the attorney general's office wrote, adding, "But a litigant does not establish a factual proposition by asserting it to be so."
The state also argued that the plaintiffs have not adequately demonstrated that the remaining abortion clinics will be unable to take on those additional patients.
In addition, the state said it is "hard to imagine" the Supreme Court would reconsider the case after the 5th Circuit rules on the issue, unless the 5th Circuit's ruling differs from the 7th Circuit's ruling in a pending case involving a similar Wisconsin law (SB 206). "The applicants do not allege that this scenario is 'likely,' and it is highly unlikely, especially when the Wisconsin and Texas cases are likely to turn on features unique to each state's abortion markets," the filing said.
Potential Supreme Court Responses
According to the Tribune, the plaintiffs anticipate that Scalia will issue an expedited decision after receiving the response. Scalia also could refer the case to the full Supreme Court. If Scalia does not reverse the appeals court's decision or refer the case to the full court, the plaintiffs might ask another justice to consider the case. The case still will proceed in the 5th Circuit if the high court opts against considering it (Texas Tribune, 11/12).