Obama Administration files brief with Supreme Court opposing Texas pro-life law

By Dave Andrusko

Solicitor General Donald B. Verrilli, Jr.

Solicitor General Donald B. Verrilli, Jr.

When it comes to the absence of surprise, this ranks right up there with NARAL Pro-Choice America endorsing Hillary Clinton for president. (See “Betcha you didn’t know this about Hillary Clinton.”)

Yesterday the Obama Administration filed a friend-of-the-court brief with the Supreme Court in support of a challenge to portions of HB2, the 2013 Texas omnibus pro-life measure. Another 44 briefs opposing HB2 were also filed Monday.

U.S. Solicitor General Donald Verrilli told the justices they should strike down provisions which require abortion clinics to meet the standards of ambulatory surgical centers and abortionists to have admitting privileges at a hospital within 30 miles of the abortion clinic. The latter provision has already gone into effect.

Verrilli wrote that “Those requirements are unnecessary to protect–indeed, would harm–women’s health, and they would result in closure of three quarters of the abortion clinics in the state.” He added that the restrictions “do not serve — in fact, they disserve — the government’s interest in protecting women’s health, and they would close most of the clinics in Texas, leaving many women in that State with a constitutional right that ‘exists in theory but not in fact.’”

As NRL News Today reported previously, the justices will hear oral arguments March 2 with a decision likely in late June or early July.


Texas Attorney General Ken Paxton

Texas Attorney General Ken Paxton

Struck down by trial court judge Lee Yeakel, the law was subsequently upheld by 5th U.S. Circuit Court of Appeals. In a 34-page opinion Judge Edith Jones noted something never mentioned in press accounts: “Planned Parenthood conceded that at least 210 women in Texas annually must be hospitalized after seeking an abortion.”

Judge Jones also wrote, “Witnesses on both sides further testified that some of the women who are hospitalized after an abortion have complications that require an OB/GYN specialist’s treatment. ”

She added, “Against Planned Parenthood’s claims that these women can be adequately treated without the admitting-privileges requirement, the state showed that many hospitals lack an Ob/Gyn on call for emergencies.”

The state of Texas’ own brief defending its law is due to the court January 27. Friend of the court briefs in support of the law are due February 3.

Back in October on the first day of the Supreme Court’s current term, Texas Attorney General Ken Paxton filed a detailed 44-page brief explaining to the High Court why it should not hear the challenge from a coalition of abortion providers, who are represented by the Center for Reproductive Rights.

Among many other arguments, Attorney General Paxton reminded the justices that the 5th Circuit’s decision found that “every metropolitan area with an abortion facility operating today in Texas will still have an operating abortion facility if the ruling takes effect.”

In addition, 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.”

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