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Obama Administration Urges SCOTUS To Strike Down Texas' HB 2

January 5, 2015 — The Obama administration on Monday urged the Supreme Court to strike down contested provisions in Texas' omnibus antiabortion-rights law (HB 2), the Wall Street Journal reports (Bravin, Wall Street Journal, 1/4).

Background

The Supreme Court in November 2015 announced it will hear a challenge to HB 2, which has already closed about half of the abortion clinics in Texas. Last month, the high court announced it will hear arguments in the case on March 2, which puts the Supreme Court on track to issue a final ruling in June.

The case, Whole Woman's Health v. Cole, centers on two provisions. One requires abortion clinics in the state to meet the same building standards as ambulatory surgical centers, and the other 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 away from the nearest clinic, and does not promote the state's interest in improving health. If the court rules for the state, the number of clinics will fall to about 10, compared with about 40 before the law took effect.

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, 1/4).

Details of Petition

In an amicus brief, U.S. Solicitor General Donald Verrilli wrote, "The requirements at issue here are far more restrictive than any this court has yet approved ... and they undermine the very government purpose they purport to advance."

Verrilli also argued that the 5th U.S. Circuit's ruling in the lawsuit incorrectly applied precedent on abortion restrictions by failing to determine whether the Texas provisions imposed an "undue burden" on abortion access. According to Verrilli, the Texas provisions cause an undue burden, which the Supreme Court defined in a 1992 decision as "unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion."

Verrilli said Texas officials undermined their claims that the restrictions further women's health because the state does not impose such restrictions on other outpatient procedures that are more likely than abortion to lead to complications that require hospitalization (Wall Street Journal, 1/4).

According to Reuters, the amicus brief called on the justices to examine the law's effects. Verrilli noted that if the law was fully implemented, women in the state would be required to travel long distances to access abortion care because many of Texas' remaining abortion clinics would be required to close. In addition, the administration said the requirements were unnecessary given the safety of abortion care in Texas and the low rate of complications stemming from the procedure.

"Those requirements are unnecessary to protect -- indeed, would harm -- women's health, and they would result in closure of three quarters of the abortion clinics in the state," Verrilli wrote (Biskupic, Reuters, 1/4).

According to Verrilli, the federal government has an interest in the lawsuit because "Congress has enacted laws relating to abortion and may legislate further in that area in the future," which therefore requires "clarification of the relevant legal principles." The federal government is not a party in the lawsuit (Wall Street Journal, 1/4).