May 20, 2014 — Abortion-rights supporters' "best hope" for stopping a wave of state abortion restrictions could be a Supreme Court ruling striking down a sweeping Texas law (HB 2), but taking the case to the high court is also a "massive gamble" for them, the National Journal reports.
When the law takes full effect in September, it will ban abortions after 20 weeks of pregnancy, restrict medication abortion, require that abortions be provided in ambulatory surgical centers and mandate that physicians who perform abortions have admitting privileges at nearby hospitals. According to the National Journal, there were 44 clinics providing abortions in Texas in 2011, dropping to around 20 clinics after certain provisions of the law took effect; the figure is expected to drop to six if the law is fully implemented (Novack/Baker, National Journal, 5/18).
A three-judge panel from the 5th U.S. Circuit Court of Appeals upheld the law's admitting privileges and medication abortion requirements, and the plaintiffs have asked the full court to review the case (Women's Health Policy Report, 4/11). Abortion-rights supporters are eventually expected to appeal to the Supreme Court, assuming they lose in the lower courts, which is expected, according to the National Journal (National Journal, 5/18). Meanwhile, a separate case challenging various provisions of the law is pending in U.S. District Court (Women's Health Policy Report, 4/3).
Abortion-rights supporters already asked the Supreme Court to block the law, but the justices declined the request. However, Justice Stephen Breyer said at the time that at least four justices "will wish to consider" whether the law is constitutional, "irrespective of the Fifth Circuit's ultimate decision."
The Supreme Court could use the Texas case to re-examine its ruling in Planned Parenthood v. Casey, in which the court said that states can restrict abortion rights but not impose an "undue burden" on abortion access.
If the court upholds the Texas law, it would pave the way for other states "to erect hurdles as high or higher than the ones in Texas," the National Journal reports. Meanwhile, a ruling against the law would undermine similar laws across the country.
Legal experts widely agree that the decision will ultimately come down to Justice Anthony Kennedy, as the other eight justices will probably split evenly along ideological lines.
Heather Busby, executive director of NARAL Pro-Choice Texas, said the effort to get the law before the Supreme Court is "a huge risk," particularly given that "at least four, if not five, justices don't have the same level of empathy for the burdens women face that [abortion-rights supporters] see on the ground" (National Journal, 5/18).
Advocates Decry Lack of Abortion Access in Rio Grande Valley
In related news, women's health advocates and abortion-rights supporters say that the Texas law has crippled women's access to abortion in the Rio Grande Valley, a low-income region where the number of clinics offering the procedure "dropped from two to zero" under the new restrictions, USA Today reports.
According to Ibis Reproductive Health, there are 275,000 reproductive age women in the Rio Grande Valley. The nearest clinic offering abortion services is in Corpus Christi, about 160 miles away, and that clinic is expected to close if the law takes full effect in September.
Lucy Felix, a field-coordinator with the National Latina Institute for Reproductive Health, said women seeking abortion services are now going to Mexico to obtain illegal procedures or buy medication abortion drugs.
Dan Grossman of Ibis Reproductive Health said, "The effect of all of this is that women who are able to obtain an abortion are often delayed in the process, possibly into the second trimester of pregnancy when abortion has higher risks" (Jervis, USA Today, 5/17).