Supreme Court Set To Hear Challenge To Texas Law Restricting Abortion Access

“Landmark” Abortion Case “Could Shape Abortion Rules For Years To Come.” The Supreme Court is scheduled to hear oral arguments for Whole Woman's Health v. Hellerstedt on March 2. The case involves a Texas abortion law that “requires abortion doctors to be affiliated with nearby hospitals and also limits abortion to ambulatory surgical centers,” according to The New York Times. Pro-choice advocates and “major medical groups say [the law] will not enhance patient safety and will only reduce women's access to abortion.” The Times wrote that the challenge is seen as a “landmark case” that “could shape abortion rules for years to come”:

On March 2, the Supreme Court is scheduled to hear arguments on the challenge to the Texas law, which requires abortion doctors to be affiliated with nearby hospitals and also limits abortion to ambulatory surgical centers. Abortion opponents say such measures are needed to protect women, but major medical groups say they will not enhance patient safety and will only reduce women's access to abortion.

Overruling a lower court's injunction, the Fifth Circuit appeals court allowed the Texas admitting-privilege rule to take effect throughout the state in 2013, immediately shuttering about half of what had been more than 40 abortion clinics, although exceptions were later granted for geographically isolated clinics in McAllen and El Paso. The second requirement, mandating costly surgical center facilities, has been temporarily stayed by the Supreme Court, but it would force still more reductions if upheld.

At stake in the case, Whole Woman's Health v. Hellerstedt, is not only the future of abortion access in Texas and in the nine other states that, like Alabama and Louisiana, have adopted similar physician rules. It could also affect dozens of other regulations of disputed medical value that have been adopted by numerous states, including limits on nonsurgical drug-induced abortions, mandated building standards for clinics and two-day or three-day waiting periods. [The New York Times, 2/24/16]

Editorial Boards Highlight Texas Law's “Assault” On Reproductive Rights

NY Times Editorial Board: The Texas Law Has “Nothing To Do With Women's Health Or Free Choice” And Imposes “An 'Undue Burden' On Women.” In a February 27 editorial, the New York Times editorial board explained that the legislation, which “was written by anti-abortion activists with the sole purpose of shutting down clinics,” “places so heavy a burden” on women in Texas “that it has effectively destroyed their constitutional right to an abortion.” The board explained that the law has “nothing to do with women's health or free choice” and instead “increases the risk to women's health,” and the writers urged the Supreme Court to follow the “undue burden” precedent set in the 1992 case Planned Parenthood v. Casey in order to block the Texas law:

Since Roe was decided in 1973, there have been countless efforts by anti-abortion activists to enact state laws that restrict abortion rights, often in the guise of protecting women's health. But few laws have gone as far as the Texas statute, which places so heavy a burden on hundreds of thousands of women across the state -- particularly those in poorer rural areas -- that it has effectively destroyed their constitutional right to an abortion.

Lawmakers claimed that the law, which requires abortion clinics to meet the strict standards of ambulatory surgical centers and their doctors to have admitting privileges at local hospitals, was necessary to protect women's health. Everyone knows this is a lie. Even the law's backers have openly admitted it. Immediately after the law, known as SB5, passed, David Dewhurst, Texas' lieutenant governor at the time, posted on Twitter a map of Texas showing that most abortion clinics across the state would be forced to close. He wrote, “We fought to pass SB5 thru the Senate last night, & this is why!”

Texas' law, like similar ones around the country, was written by anti-abortion activists with the sole purpose of shutting down clinics. Its two main requirements have nothing to do with protecting women's health.

Admitting privileges are often hard for doctors to get for bureaucratic reasons, and they have no bearing on the care a woman receives. Surgical-center standards are prohibitively expensive to meet and medically unnecessary, since abortion is one of the safest of all medical procedures, with a complication rate of less than one-tenth of 1 percent. That is true whether an abortion is performed in an outpatient clinic or a doctor's office, as the vast majority are, or in a hospital. Meanwhile, Texas law does not require these same staffing and equipment standards for clinics that perform procedures with far higher complication rates, like colonoscopies.

If anything, the law increases the risk to women's health, since the hundreds of thousands of women without access to professional care are more likely to resort to dangerous methods to end their pregnancies.

In the 1992 case Planned Parenthood v. Casey, the Supreme Court struck down abortion restrictions that impose an “undue burden” on women. Such restrictions include “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.” There is no more apt a description than that for the Texas law.

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Laws like the Texas statute have nothing to do with women's health or free choice. If the “undue burden” test serves any purpose, it must be to block such laws wherever they appear. [The New York Times, 2/27/16]

Washington Post Editorial Board: The Texas Law Is “An Assault On Abortion Access Dressed Up As Concern For Pregnant Women.” A February 29 piece by the Washington Post editorial board encouraged the justices to “see through th[e] pretext” that the Texas law is “designed to protect patient health,” pointing to a brief by the American College of Obstetricians and Gynecologists and the American Medical Association that explained that the restrictions “fail to enhance the quality or safety of abortion-related medical care and, in fact, impede women's access to such care.” The board argued that “it's hard to see how the court can take” the “undue burden” precedent set in Planned Parenthood v. Casey "seriously and side with Texas this time around":

BEFORE THE Supreme Court on Wednesday, Texas is set to argue that new regulations on abortion clinics in the state are designed to protect patient health. The justices should see through that pretext. Texas's restrictions are an assault on abortion access dressed up as concern for pregnant women. Previous court rulings barred laws that place an “undue burden ” on women seeking abortions. If this precedent has practical meaning, it should rule out what Texas is trying to do.

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The state responds that there is enough debate about the medical value of its regulations that the courts should steer clear of attempting to substitute its judgment about them for the legislature's. Then how about taking the judgment of medical experts? The American College of Obstetricians and Gynecologists and the American Medical Association declared in a brief last year that Texas's requirements “are contrary to accepted medical practice and are not based on scientific evidence. They fail to enhance the quality or safety of abortion-related medical care and, in fact, impede women's access to such care by imposing unjustified and medically unnecessary burdens on abortion providers.”

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In 1992 in Planned Parenthood v. Casey, the court ruled that the state “may not impose unnecessary health regulations that present a substantial obstacle to a woman seeking an abortion.” It is hard to see how the court can take those words seriously and side with Texas this time around. [The Washington Post, 2/29/16]

Star-Ledger: The Motive Of Texas' “Unnecessary” Anti-Choice Law “Is To Incrementally Dismantle Abortion Rights.” In a February 29 piece, the Star-Ledger editorial board called the Texas law a “sham” andnoted that “the real motive is to incrementally dismantle abortion rights.” The board, pointing out that “Abortion is already a safe procedure,” noted that one judge has already found that the restrictions “were not medically justified and created an undue burden” and concluded, “For the sake of hundreds of thousands of poor women, let's hope the Supreme Court” strikes down the law:

While Texas passed unnecessary, prohibitively expensive “safety” regulations that effectively shut down more than half its abortion clinics, at least 100,000 women tried to induce their own abortions, a study found. It used a statewide representative survey that determined at least 1.7 percent of Texas women have tried to self-induce.

Something to bear in mind when we talk about keeping women safe.

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Why regulate abortion, and not medical procedures with much greater risk? Because the real motive is to incrementally dismantle abortion rights, to restrict access to abortions to the point where they're only for the wealthy or well-connected.

Can lawmakers pass any restrictions on abortion that they want, so long as they say it's for the sake of protecting women's health? That's the question now before the court.

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Abortion is already a safe procedure. It rarely results in medical complications and almost never causes maternal deaths. Yet the appeals court that upheld the Texas law argued that as long as “any conceivable rationale” for an abortion regulation exists, even if it's totally unsupported by evidence or data, justices should accept that without further inquiry.

This is why more than half of Texas' abortion clinics have closed. Some women now have to drive 5 hours to get an abortion, a trip all must make twice because of a required 48-hour waiting period. And for what?

A Texas judge appointed by former President George W. Bush has already found that both the admitting privileges and the mini-hospital requirements were not medically justified and created an undue burden.

For the sake of hundreds of thousands of poor women, let's hope the Supreme Court does the same. [The Star-Ledger, 2/29/16]

USA Today Editorial Board: The Texas Law “Pretend[s] To Protect Women But Actually Endanger[s] Their Health.” In a February 29 editorial, the USA Today editorial board noted that reproductive rights are “under siege,” writing, “If the Texas law is upheld, women across the South and in other states will have little ability to exercise th[e] constitutional right” to abortion. The board explained that it is “misleading” to claim the law “promotes health” and that “Since the law's passage in Texas, the real threat to women's health has been clinic closures.” The board concluded that those who oppose abortion “shouldn't be able to obliterate that right with laws that pretend to protect women but actually endanger their health”:

When the Supreme Court guaranteed the right to abortion 43 years ago in the landmark Roe v. Wade ruling, the court meant it to be a right for all women. But as abortion foes have piled on one onerous restriction after another, this constitutional right increasingly depends on where a woman lives or on her financial resources.

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The Texas case is the most far-reaching abortion rights case to reach the court since 1992. More than a dozen states have enacted similar restrictions. If the Texas law is upheld, women across the South and in other states will have little ability to exercise this constitutional right. A raft of earlier restrictions -- from waiting periods to forced sonograms and counseling -- has already made abortions harder to obtain in other states. Mississippi, Missouri, North and South Dakotas and Wyoming are each down to only one clinic.

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The Texas law -- which requires all providers to have “admitting privileges” at a nearby hospital and to maintain the hospital-like standards of ambulatory surgery centers -- might sound like it promotes health. But medical experts and facts on the ground in Texas show just how misleading that is.

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Since the law's passage in Texas, the real threat to women's health has been clinic closures. In Dallas, for example, shutdowns have pushed wait times from a typical five days to as much as 20 days for an initial appointment. More closures would lengthen delays, pushing more abortions into the second trimester, not a healthful trend.

Women in some areas with no clinics must travel hundreds of miles to get an abortion.

Five leading national medical associations assert in a Supreme Court brief that far from improving women's health, the Texas law “has delayed, and in some cases blocked, women's access to legal abortion,” jeopardizing women's health. For women of means, these restrictions might present a minor inconvenience, but for a woman with a minimum-wage job, no paid sick days and children who need child care, they are major obstacles.

The Texas case is a watershed moment. Abortion has been a constitutional right for all women since 1973. Its opponents shouldn't be able to obliterate that right with laws that pretend to protect women but actually endanger their health. [USA Today, 2/29/16]

Providence Journal Editorial Board: The Right To An Abortion “Is Being Throttled By ... Politics.”In a February 29 piece, the Providence Journal editorial board explained that Texas's law “makes the landscape crueler for women who are already dealing with a terribly difficult situation,” pointing out that closing clinics “means that many women of childbearing age must travel for hours and plan overnight stays to obtain the procedure,” which is “a considerable hardship for many.” The writers added that laws in states like Texas “must not make it unduly onerous for clinics that perform the procedure to exist”:

In Texas, some 30 clinics have closed since legislators passed a restrictive law in 2013; that case is now under review by the Supreme Court. Clinics have closed for a variety of reasons, from Alaska to Florida, from Maine to California. That means that many women of childbearing age must travel for hours and plan overnight stays to obtain the procedure, a considerable hardship for many. In some states, such as Missouri, residents can seek the procedure at just one clinic in the entire state.

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A legal right that is effectively denied is not much of a right at all. And it makes the landscape crueler for women who are already dealing with what is often a terribly difficult situation.

It is appropriate and necessary for states to pass laws that lead to the closure of unsafe clinics. But it is inappropriate and unnecessary to seek to legislate them out of existence for political reasons.

Abortion is legal and should be kept that way. States must not make it unduly onerous for clinics that perform the procedure to exist. [Providence Journal, 2/29/16]