Before the Texas Legislature passed House Bill 2 in 2013, the number of abortion providers in the state maybe fluctuated by one or two every year. When the law began to kick in, 20 clinics closed their doors because they couldn’t comply.
On Wednesday, the U.S. Supreme Court heard arguments in the challenge to Texas’s omnibus anti-abortion law, a case that could very well decide whether states can impose restrictions so severe that abortion is, in practice, inaccessible for many women at the lower rungs of the socioeconomic ladder.
Yet some of the dudes on the court chimed in early on in the hearing with this question: Did the law, whose stricter requirements closed a bunch of clinics, like, really close a bunch of clinics?
Attorney Stephanie Toti, arguing for the Center for Reproductive Rights, which led the challenge to Texas’s law, pointed out that some closed before the state began to implement its requirement that abortion providers get admitting privileges at a nearby hospital, which many have said they cannot obtain because of the lingering stigma attached to abortion, particularly in Texas (those clinics that closed early on didn’t want to waste licensing fees on a facility that the state would soon force to shut its doors). Eleven of those 20 clinics closed on the day the admitting privileges requirement went into effect, Toti said.
Still, that law-causes-clinic-closures line is apparently too complicated for Justice Samuel A. Alito Jr., one of the court’s most conservative members, to follow: “There is very little specific evidence in the record in this case with respect to why any particular clinic closed," Alito said.
Also at issue in the case is whether the court will let stand the requirement that all Texas abortion clinics abide by the hospital-like standards of so-called ambulatory surgical centers. Before the GOP-dominated Texas Legislature passed the law in 2013, medical groups like the American Medical Association, the American College of Obstetrics and Gynecologists and the American Academy of Family Physicians all said the new restrictions were not only medically unnecessary, but could actually increase the risks for women seeking abortion; researchers have since noted that increased wait times at clinics that managed to stay open have pushed more abortions into the second trimester, which increases health risks.
Still, Texas lawmakers passed HB2 anyway, claiming their intent wasn’t to shutter clinics, but rather to safeguard women’s health.
On Wednesday U.S. Solicitor General Donald B. Verrilli Jr. also argued on behalf of the clinics fighting to stay open, saying restrictions in the Texas law are “much more extreme than those of any abortion law that this Court has considered” since Planned Parenthood v. Casey, a landmark 1992 case in which the High Court ruled that states couldn’t pass abortion restrictions that impose an “undue burden” on a woman’s constitutional right to choose.
From Verrilli’s argument:
“This law closes most abortion facilities in the State, puts extreme stress on the few facilities that remain open, and exponentially increases the obstacles confronting women who seek abortions in the State. And it does all of that on the basis of a medical justification that cannot withstand any meaningful scrutiny, that the American Medical Association told you is groundless and that the district court found will actually operate in practice to increase health risks to women and not decrease.”
Alito and Roberts asked another version of their earlier question: How do you know that provision will close clinics? How do you know they can’t upgrade?
They must have short memories. In fact, as the justices heard arguments, it was often up to the women at the bench to point out the obvious to their male colleagues. Justice Elena Kagan recalled that just last summer, thanks to a ruling by the super-conservative Fifth Circuit federal appeals court, the Texas ambulatory surgical center requirement was allowed to take effect. Overnight, a dozen abortion clinics were forced to close their doors. The clinics only reopened once the Supreme Court stepped in a couple weeks later to block the law while it made its way up the appeals ladder.
“It’s almost like the perfect controlled experiment as to the effect of the law, isn’t it?” Kagan said. “It’s like you put the law into effect, 12 clinics closed. You take the law out of effect, they reopen.”
As to Alito’s question of whether clinics will, eventually, catch up to the new requirements, Toti said the cost to upgrade is clearly prohibitive. Clinics that retrofit would have to spend between $1.6 million to $2.3 million, she said. Building an entire new facility would cost at least $3.5 million. And that’s not even considering the additional $600,000 to $1 million annually it takes to operate such a facility.
Should the law stand, it’s expected only ten abortion providers in the state will survive the new regulations, all clustered in the state’s metro areas. Some 900,000 women of reproductive age, in some of the most economically depressed parts of the state, would live more than 150 miles from a clinic. As Steven Young with our sister paper the Dallas Observer reports, Whole Women's Health CEO Amy Hagstrom Miller addressed the pro-choice crowd rallying outside the Supreme Court building Wednesday in support of abortion providers fighting the law (see more of Young's coverage here):
"We’re fighting a harsh, cruel law that does nothing to promote women’s health. Today we stood up for the woman from Lubbock who will drive over 250 miles one way to end her pregnancy. We stood up for the mom from Laredo who will look through her cabinets, hoping to find something that will end her own pregnancy because she can’t afford the travel, the child care or the multiple days off work that have become part of getting an abortion in Texas."
Inside the courtroom, as Texas Solicitor General Scott Keller argued the state’s position (that lawmakers have every right to pass regulations that require higher standards inside medical facilities), Justice Kagan questioned the arbitrariness of Texas’s approach. Why target abortion instead of more risky procedures, like liposuction or colonoscopy, which doctors aren’t required to perform in an ambulatory surgical center?
“I mean, if the legislature says we have a … a health-related abortion regulation here, we’ve looked around the country and we think that there are ten great hospitals in the country, you know, Massachusetts General, Brigham and Women’s, and we’re going to make all our abortion facilities conform to the standards of those hospitals, and that will – you know, that will increase medical care. Now, it’s true we don’t make anybody else doing any kind of – other kind of procedure conform to those standards, but we think it will increase health benefits if abortion facilities conform to them. Would that be all right?”
Keller’s response: “Under this court’s precedent, abortion can be treated differently.”
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During Keller’s arguments, he said women in El Paso, which would no longer have an abortion clinic should the law stand, wouldn’t really have to travel hundreds of miles to find the closest available abortion clinic since New Mexico’s right next door.
Justice Ruth Bader Ginsburg had fun with that one:
“That’s – that’s odd that you point to the New Mexico facility. New Mexico doesn’t have any surgical – ASC requirement, and it doesn’t have any admitting requirement. So if your argument is right, then New Mexico is not an available way out for Texas because Texas says to protect our women, we need these things. But send them off to Mexico – New Mexico – New Mexico where they don’t get it either, no admitting privileges, no ASC. And that’s perfectly all right.
Well, if that’s all right for the – the women in the El Paso area, why isn’t it right for the rest of the women in Texas?”
The case pretty much hinges on Justice Anthony Kennedy, the resident swing vote on the court since 2007. While he questioned the law, and explicitly aired his concerns with some of the provisions, he didn’t exactly tip his hand on which way he’s leaning.