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Obama, Davis Ask Supreme Court to Reject Texas Abortion Law

Photo illustration by Todd Wiseman/TexasTribune

From the Texas Tribune: Intervening in what could be a landmark decision, the Obama Administration, state and federal lawmakers and medical experts asked the U.S. Supreme Court Monday to overturn Texas’ 2013 abortion law, which could shut down about half of the state’s 19 remaining abortion clinics.

In 45 amicus briefs filed to the Supreme Court, opponents of the Texas abortion law known as House Bill 2 argued that restrictions under the law are unconstitutional because they impose an undue burden on women seeking abortions and would do little to improve women’s health.

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,’” wrote U.S. Solicitor General Donald Verrilli, Jr. on behalf of the Obama administration.

The high court will hear oral arguments in the case in the case on March 2, and a decision is expected this summer. The Texas restrictions under review would require abortion facilities to meet hospital-like ambulatory surgical center standards, including minimum sizes for rooms and doorways, pipelines for anesthesia and other modifications. A separate provision — which has already gone into effect and led to the closure of about half of the state’s abortion clinics — requires doctors who perform the procedure to have admitting privileges at a hospital within 30 miles of an abortion.

The Supreme Court’s decision in the Texas case could prove historic in determining how far states can go in restricting abortion. State attorneys say lawmakers passed the measure to enhance the safety of abortions and ensure women are getting the highest standard of health care.

But the coalition of Texas abortion providers suing the state argue the that the restrictions do not advance the state’s interest in promoting health and that judges determining the constitutionality of abortion restrictions should scrutinize lawmakers’ motives. Courts should “confirm that the restrictions are reasonably designed to serve a valid state interest in a permissible way,” the providers’ attorneys have argued.

The 45 “friend of the court” briefs filed Monday sought to undermine claims made by the state that the abortion restrictions improve women’s health. And the Obama Administration in its brief argued that courts should “inquire” whether regulations actually improve women’s health or serve only “to make abortions more difficult” to obtain.

Among those who signed onto the amicus briefs filed Monday are 163 members of Congress — including several Texas Democrats — legal experts, the ACLU, abortion-rights advocates and the American Medical Association, among several other health care providers.

Wendy Davis, who rose to national prominence after filibustering the restrictive abortion law in 2013, also signed onto a separate amicus brief with other current and former women legislators who have publicly disclosed their own abortions.

Davis, a former state senator and Democratic gubernatorial nominee, revealed in a bookpublished ahead of that election that she terminated two pregnancies for medical reasons more than 15 years ago.

“We joined in this brief to help the court understand the very real human stories behind abortion in this country and for them to hopefully consider this issue in those terms and outside of the abstract legal terms that are sometimes talked about,” Davis said during a call with reporters on Tuesday.

If the court upholds the restrictions, Texas would be left with 10 abortion clinics — down from more than 40 clinics open before the abortion law was passed in 2013.

Five of the remaining clinics would be Planned Parenthood facilities. But Cecile Richards, president of Planned Parenthood Federation of America which also filed an amicus brief, said those facilities would not be able to meet the demand in Texas if the abortion law is upheld.

“Texas paints a grim picture of what will become a reality across the U.S. if the Supreme Court upholds this clinic shutdown law,” Richards said during the press call.

A decision in the Texas case could have widespread consequences across the countries where similar abortion restrictions are in place.

There are currently 10 states that have passed admitting privileges requirements, but courts have blocked their enforcement in six of those states, according to the Center for Reproductive Rights. Six states have enacted hospital-like ambulatory surgical center standards on abortion facilities. Those restrictions are not in effect in two of those states.

Fourteen states, including New York and California, signed onto a separate amicus brief, arguing that states are allowed to impose abortion restrictions, but that courts should be required to “engage in meaningful review of abortion regulations” purportedly enacted to advance a state’s interest in protecting women’s health.

The Texas Attorney General’s Office, which had asked the high court to reject the providers’ request to take up the case, contends the abortion providers have not proved that HB 2 would impose an undue burden for the majority of Texas women seeking the procedure. And when the high court announced in November that it would take up the abortion case, the AG’s office reiterated that the state’s defense of the abortion law includes “common-sense measures” intended to “elevate the standard of care and protect the health of Texas women.”

The state is expected to file its own briefs in the case in the coming weeks.

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