By Dave Andrusko
On September 3, NRL News Today posted a story outlining how a coalition of Texas abortion providers had appealed to the Supreme Court, asking the justices to hear a challenge to portions of Texas’ omnibus pro-life bill HB 2.
Their request was prompted by last June’s decision by a three-judge panel of 5th Circuit Court of Appeals which upheld most of the Texas law.
Yesterday, on the first day of the Supreme Court’s new term, Texas Attorney General Ken Paxton filed a thoughtful and detailed 44-page brief explaining to the High Court why it should reject the challenge from a coalition of abortion providers, who are represented by the Center for Reproductive Rights.
At issue are two provisions–that abortion clinics meet the same building standards as ambulatory surgical centers (ASCs) and that abortionists have admitting privileges at a nearby hospital for situations of medical emergencies. The latter has already gone into effect.
The various and sundry challenges to HB 2 have been winding their way through the legal system for over a year and half. The ins and outs, the twists and turns are mind-numbingly complex.
Adding urgency is that if the High Court does accept the case, a decision could come down in mid-2016, in the midst of the presidential contest.
“Originally, the abortion providers challenged the ambulatory surgical center provision and asked for exemptions from the admitting privileges requirement for two clinics: Whole Woman’s Health in McAllen and Reproductive Services in El Paso,” according to Alexa Ura of the Texas Tribune. “But the providers are now asking the Supreme Court to permanently block enforcement of both provisions.”
The appellate court carved out an exception from most of the hospital-like standards for the Whole Woman’s Health clinic in McAllen and granted one of the McAllen clinic’s doctors relief from the admitting privileges requirement. But it denied a request from abortion providers to delay the ruling’s implementation while the providers appealed to the high court.
That’s when the Supreme Court intervened in the case, voting 5-4 to put the 5th Circuit’s ruling on hold.
The abortion providers argue that the effect of the law will be to close many abortion clinics, thus creating an “undue burden” on the right of women to have an abortion.
Among many other arguments, Attorney General Paxton reminded the justices that
Petitioners ignore the fact that under the Fifth Circuit’s decision, which granted as-applied relief in McAllen, every metropolitan area with an abortion facility operating today in Texas will still have an operating abortion facility if the ruling takes effect
More, he wrote, “States are given wide discretion to pass medical regulations.” Paxton explained that the admitting privileges requirement had already been upheld by courts in a separate lawsuit which “correctly conclude[d] that the challenged provisions of HB2 do not facially impose an undue burden.”
Petitioners ask this Court to depart from a quarter-century of this Court’s abortion jurisprudence by judging for itself the medical effectiveness of HB2’s requirements and balancing it against the burdens purportedly caused by HB2. In short, petitioners would have this Court serve as “the country’s ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States”—a role this Court has specifically declined to assume.
“[The abortion providers] wish to proceed as if their first lawsuit against HB 2 never happened,” the state attorneys continued. “But they litigated that case to a final judgment, and arguments and evidence they chose not to present there are barred.”
If the justices reject the appeal (a decision is not expected for weeks), the 5th Circuit’s ruling will stand.