Supreme Court to Hear Texas Abortion Case

The Nine.
Photo from the U.S. Supreme Court

The U.S. Supreme Court on Friday announced it will hear a challenge to Texas's omnibus abortion law, a case that has the potential to redefine what restrictions states can legally place on abortion providers.

The law, House Bill 2, has been a point of contention ever since it hit the state legislature two years ago. Former state Sen. Wendy Davis rocketed to political fame and the Democratic nomination for governor based on her filibuster opposing the bill in the summer of 2013. Despite the filibuster, HB2 was ultimately pushed through the Lege in a special session called by then-Gov. Rick Perry. Soon afterward, a coalition of abortion providers sued challenging the law as unconstitutional.

Before HB2 passed, there were more than 40 abortion clinics in the state of Texas. In the course of the protracted legal battle over the law, which has been implemented piecemeal as the courts have allowed it, abortion providers have been whittled down to just 18 clinics in the state. Providers say that the law, if fully implemented, would shutter all but 9 abortion clinics, which would only be located in the state's metro hubs of Houston, Austin, Dallas-Fort Worth and San Antonio.

Throughout the case, abortion providers and the state attorneys fighting to uphold the law have argued both sides of these two questions: whether the restrictions HB2 places on abortion providers are “reasonably related” to a “legitimate state interest,” and whether those restrictions ultimately constitute an “undue burden” on a woman's constitutional right to choose.

While most of the law has been implemented, Texas has yet to enact the final provision of the law, which requires abortion clinics to dump as much as $1.5 million into building improvements and upgrades in order to meet the hospital-like standards of ambulatory surgical centers. Most remaining abortion providers in the state say such an expense would force them to close. Perhaps most importantly, abortion providers and reproductive rights advocates point out that once the law is fully implemented, nearly 1 million Texas women of reproductive age will live more than 150 miles away from an abortion provider—about one in six women of reproductive age in the state.

How the Supreme Court rules on HB2 could affect more than just what clinics remain open in Texas. Constitutional scholars say the case could redefine not only what constitutes an “undue burden” on a woman's right to an abortion, but also what it means for lawmakers to have a “legitimate state interest” in regulating abortion providers. While the Republican state lawmakers who championed HB2 have said it was crafted solely to safeguard women's health, the federal district court judge who heard the case at trial has pointed to the “dearth of credible evidence” that the ambulatory surgical center requirement in any way makes women safer. In fact, there's emerging research that the law could actually endanger more women do manage to obtain an abortion (researchers say a spike in clinic wait times could dramatically increase the number of second-trimester abortions, which carry a higher complication rate).

Amy Hagstrom Miller, president and CEO of Whole Woman’s Health, one of the plaintiffs in the legal challenge to HB2, told us earlier this year that the stakes are incredibly high: “Does Roe apply for everybody or just for some people?”

How the court, which will most likely decide the issue at the end of its term next summer, will answer that question is unclear. The justices appear to be pretty evenly split between the liberal and conservative factions, with Justice Anthony Kennedy acting as the swing vote. He came down on the liberal side when the court decided in favor of gay marriage earlier this year, but his rulings on women's rights have landed on both sides of the issue — he voted in favor of the “undue burden” standard established by the 1992 case Planned Parenthood v. Casey, but in 2007 he voted to uphold state bans on late-term abortions. It's a tossup how Kennedy will come down on the issue this time around.

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It's hard to undersell how important this case could be for abortion rights across the country. Depending on how the High Court rules, it could very well be the country's next landmark abortion case, one that literally redefines whether women at the lower rungs of the socioeconomic ladder have the right to choose.

And, go figure, it will center on abortion restrictions passed by the Texas Legislature.

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