By Dave Andrusko
The next phase in the ongoing litigation over portions of Texas’s 2013 omnibus pro-life bill will be whether the Supreme Court hears a challenge to an appeals court decision that upheld most of HB 2.
Meanwhile, after nearly a year of being out of business, the Reproductive Services abortion clinic reopened its doors on Tuesday. That reopening could be brief, should the High Court decide not to hear an appeal from a coalition of abortion providers represented by the Center for Reproductive Rights. The clinic says it intends to begin performing abortions next week.
The clinic, located near the Mexican border, failed to meet two requirements: that it meets the standards of an ambulatory surgical center and that its abortionists have admitting privileges at a hospital within 30 miles.
“Reproductive Services stopped providing abortions in April 2014 and eventually shut its doors after the clinic’s doctor lost admitting privileges at a nearby hospital,” according to Alexa Ura of the Texas Tribune.
“Originally, the abortion providers challenged the ambulatory surgical center provision while asking for an exemption from the admitting privileges for two clinics: Whole Woman’s Health in McAllen and Reproductive Services in El Paso.” Ura added. “But the providers are now asking the Supreme Court to permanently block enforcement of both provisions.”
On June 9, a three-judge panel of the United States Court of Appeals for the Fifth Circuit, largely upheld the contested provisions. With minor exceptions, they concluded the provisions did not create an “undue burden” on a woman’s right to abortion.
Ten days later, after the panel declined to grant the challengers a stay, the clinic filed an emergency appeal to the Supreme Court .
On July 27, 2015, the Court voted 5-4 to put the 5th Circuit’s ruling on hold. Chief Justice John Roberts and Associate Justices Antonin Scalia, Clarence Thomas and Samuel Alito voted against the delay.
“The Texas attorney general’s office has argued that the abortion restrictions are constitutional, reasonable measures meant to improve women’s health,” Ura reported. “Attorneys for the state have also said that the regulations would not create an undue burden for a majority of women seeking the procedure.”
Worth noting is that the abortion clinics did not challenge the Pain-Capable Unborn Child Protection Act, which is part of HB2. This provision prohibits killing unborn children who have reached the developmental milestone of being able to feel pain, which substantial medical evidence places at 20 weeks, if not earlier.