November 13, 2015 — The Supreme Court on Friday announced that it will hear a challenge to parts of an omnibus antiabortion-rights law (HB 2) that has already closed about half of the abortion clinics in Texas, the New York Times reports (Liptak, New York Times, 11/13).
According to Politico Pro, oral arguments will likely take place this spring, and a ruling is expected before the court's term concludes in June (Haberkorn, Politico Pro, 11/13).
The case centers on two provisions in the Texas law. One requires abortion clinics in the state to meet the same building standards as ambulatory surgical centers, and the second requires abortion providers to have admitting privileges at local hospitals.
The Center for Reproductive Rights, which represents the group of abortion providers challenging the law, argues that HB 2 is unconstitutional, creates an undue burden for Texas women who live far from the nearest clinic, and does not promote the state's interest in improving health (Women's Health Policy Report, 9/8). If the court rules for the state, the number of clinics will fall to about 10, compared with about 40 since the law took effect (New York Times, 11/13).
In June, the 5th U.S. Circuit Court of Appeals upheld the law's ambulatory surgical centers provision and admitting privileges requirements except in the case of one clinic, Whole Woman's Health in McAllen, Texas. Later that month, CRR asked the 5th Circuit to stay the decision while the clinics appeal to the Supreme Court. The 5th Circuit rejected the request.
CRR then filed an emergency request with the Supreme Court to stay the lower court's ruling and allow the clinics to remain open pending appeal. The Supreme Court in late June temporarily blocked HB 2's ambulatory surgical center requirement. There was debate about whether the high court's order also blocked the law's admitting privileges requirement (Women's Health Policy Report, 9/7).
According to the Times, the Supreme Court in hearing the lawsuit could clarify its 1992 ruling in Planned Parenthood v. Casey, in which the high court held that states cannot impose an undue burden on a woman's right to abortion prior to fetal viability. Under Casey, "unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion" are considered undue burdens (New York Times, 11/13).
According to Politico Pro, "dozens of states" have limited abortion access through measures such as delays, building code rules and ultrasound requirements since the Casey ruling.
Each side of the case appears to have the support of four of the nine justices. According to Politico Pro, Justice Anthony Kennedy likely will cast the deciding vote.
CRR President Nancy Northup said the case "will be the most important abortion rights case before the Supreme Court in almost 25 years" (Politico Pro, 11/13).
Separately, Debra Ness, president of the National Partnership for Women & Families, urged the court to strike down HB2, noting, "The Supreme Court has an opportunity in Whole Woman's Health v. Cole to reaffirm Roe v. Wade and help take politics out of exam rooms. HB 2 is unconstitutional and it erodes the fundamental tenets of good health care in our nation" (National Partnership for Women & Families release, 11/13).