During oral arguments Wednesday in a case challenging the constitutionality of Texas’ abortion restrictions, U.S. Supreme Court justices focused on what role the rules played in closing dozens of clinics, and probed the state’s justifications for the law.
Conservative justices asked if the abortion providers challenging restrictions passed as House Bill 2 in 2013 could prove that two provisions in the law can be blamed for leaving the state with fewer clinics. They also wanted to know if the remaining clinics have the capacity to serve Texas women attempting to obtain the procedure.
Meanwhile, liberal justices pressed the state to prove that the medical justifications cited for passing the abortion restrictions were necessary.
The contested provisions are part of HB 2. One requires abortion clinics to meet the same standards as hospital-like ambulatory surgical centers, which range from minimum sizes for rooms and doorways to the number of nurses required to be on duty.
A separate provision requires doctors performing abortions to have admitting privileges at a hospital within 30 miles of an abortion clinic.
Only 19 Texas clinics remain of the more than 40 that were open before HB 2 passed, and the restrictions have been blamed for the closures. The court’s decision in Whole Woman’s Health v. Hellerstedt, expected sometime this summer, could leave the state with as few as 10 clinics.
Stephanie Toti of the Center for Reproductive Rights, which is representing the abortion providers, pointed out that 11 clinics closed the day the admitting privileges requirement went into effect, bringing the number of clinics down to about 20. Eight clinics closed in anticipation of the law going into effect, she said
But conservative justices appeared skeptical as to whether abortion providers had provided enough evidence to blame the restrictions for those closures. Justice Samuel Alito was the most critical, questioning whether the clinics had closed due to other factors.
“What’s the difference...was that their burden?” Alito said.
Justice Elena Kagan responded by pointing out that Texas was left with only a handful of clinics during a two-week period when the ambulatory surgical requirements went into effect last year.
Those clinics reopened when the Supreme Court intervened in the case. “It’s almost a perfect control experiment, isn’t it?” Kagan said.
The case under review was filed in 2014 by a coalition of Texas abortion providers who argue the restrictions create substantial obstacles for Texas women seeking abortions — an "undue burden" that renders the rules unconstitutional — and do not advance the state’s interest in promoting health.
Attorneys for the state contend the regulations are intended to ensure women’s safety, and there isn’t sufficient evidence that they create an undue burden for the majority of Texas women seeking abortions.
Justice Ruth Bader Ginsburg challenged that argument. In determining whether an abortion restriction is constitutional, “our focus must be on the ones who are burdened,” Ginsburg said.
She cited a spousal notification requirement struck down in Planned Parenthood v. Casey, the 1992 U.S. Supreme Court case that reaffirmed a woman’s right to an abortion but gave states more power to restrict the procedure to “further the health or safety of a woman."
In that case, the court struck down a requirement that married women notify their husbands before obtaining an abortion.
“You only look to the women for whom this is a problem,” Ginsburg added.
The lower courts have split on the constitutionality of the provisions. In 2014, U.S. District Judge Lee Yeakel of Austin struck down both provisions. The state immediately appealed to the U.S. 5th Circuit of Appeals, which in June upheld most of its provisions.
The appellate court did carve out an exception from most of the hospital-like standards for the relatively remote Whole Woman’s Health clinic in McAllen, and granted one of the McAllen clinic’s doctors relief from the admitting privileges requirement.
In that ruling, the 5th Circuit also diverged from opinion of other circuits by rejecting the notion that legal precedent requires courts to scrutinize the facts state legislatures use to justify health-related abortion restrictions.
On Wednesday, Alito, was among the most vocal in agreeing with that argument, questioning whether courts are “qualified” to determine the validity of states’ medical justifications.
The Texas abortion case could have national implications. As of last November, 10 states had adopted admitting privileges requirements, but courts blocked enforcement in six of those, according to the Center for Reproductive Rights. Six states had enacted ambulatory surgical center standards on abortion facilities, but those restrictions were blocked in two of those states.