Supreme Court Will Hear Case That Could Allow States to Strip Away Abortion Access

WASHINGTON - The U.S. Supreme Court announced today that it will hear a Texas case that will decide whether states can restrict access to safe and legal abortion by imposing unnecessary regulations on providers that force many clinics to close.  

There are two laws at issue in the case. The first requires doctors who perform abortions to obtain admitting privileges at a nearby hospital.  The second requires that abortion facilities meet the same building standards as ambulatory surgical centers. Both are opposed by leading medical groups, like the American Medical Association and the American College of Obstetricians and Gynecologists, who have filed briefs with the Supreme Court stating that the laws are unnecessary and put women’s health at risk. 

“When the leading medical groups like the AMA oppose these laws, you have to ask yourself what they are really about,” said Jennifer Dalven, director of the ACLU’s Reproductive Freedom Project. “They’re about shutting down clinics and attempting to prevent a woman who has decided to have an abortion from getting one.”

The admitting privileges requirement singles out doctors who provide abortions and requires them to obtain admitting privileges at a nearby hospital. But doctors who provide abortions are often unable to get such privileges for reasons that have nothing to do with their ability to provide high quality medical care. For example, because abortions are one of the safest medical procedures, doctors who provide them very rarely admit a patient to the hospital.  Yet most hospitals require that doctors have a minimum number of hospital admissions every year in order to obtain and maintain their privileges.  In other words, abortion providers are unable to qualify for admitting privileges because the procedure is so safe.

The ambulatory surgical requirement also singles out facilities that provide abortions and requires them to comply with unnecessary building regulations that the state doesn’t require for providers of other medical procedures that involve similar or, even greater, health risks.

These laws have an extraordinary impact on Texas women’s ability to get an abortion if she needs one. When these laws were enacted there were more than 40 clinics in the state.  These laws would leave Texas, home to 5.4 million women of reproductive age, with only 10 clinics.

“A woman’s constitutional right to safe and legal abortion services was recognized more than 40 years ago, but extremists in the Texas legislature have been whittling that right away ever since,” said Terri Burke, executive director of the ACLU of Texas. “Medically unnecessary restrictions on health care providers like the ASC requirement advance politicians’ ideological agenda, but at the expense of women’s health. I’m hopeful that the Supreme Court will put the interests of Texan women over the political interests of Texas legislators and strike down this dangerous law before any more clinics close.”

The Supreme Court’s decision will affect not only women’s access to abortion in Texas, but in much of the rest of the country as well.  Since 2010, states have enacted almost 300 restrictions on access to abortion; more than 50 have been adopted in 2015 alone. 

On the specific issue of admitting privileges, similar laws are currently being challenged in at least five other states:  Alabama, Louisiana, Mississippi, Oklahoma and Wisconsin. In striking down an admitting privileges law earlier this year, a federal judge in Wisconsin rejected the state’s medical evidence as unsound and concluded, “The only reasonable conclusion is that the legislation was motivated by an improper purpose, namely to restrict the availability of abortion services in Wisconsin.”

The Fifth Circuit Court of Appeals, which upheld the Texas laws, on the other hand, said that the opinion of the major medical groups and the medical evidence was irrelevant to the question of whether the state could rely on health-related justifications as reasons for closing the clinic.  In an earlier challenge to the Texas law, that court wrote that “rational speculation” that a law might improve women’s health, even in the face of substantial medical evidence to the contrary, is enough to uphold abortion restrictions that would shut down the majority of clinics in the state.

The Supreme Court has consistently reaffirmed that the Constitution protects a woman’s decision to have an abortion.

“We are hopeful that the Court will stay true to its precedent and make perfectly clear that medical evidence matters.  The Constitution doesn’t allow states to rely on sham justifications for shutting down clinics in an effort to stop women from getting abortions,” said Dalven.

The ACLU and Planned Parenthood are counsel in Alabama and Wisconsin cases that also challenge the admitting privileges and ambulatory surgical requirements. The Texas Case, Whole Woman’s Health v. Cole, was brought by the Center for Reproductive Rights.

More information about the ACLU’s Wisconsin and Alabama cases are available at:
https://www.aclu.org/cases/planned-parenthood-southeast-inc-v-strange
https://www.aclu.org/cases/planned-parenthood-wisconsin-v-van-hollen

This press release is available at:
https://www.aclu.org/news/supreme-court-will-hear-case-could-allow-states-strip-away-abortion-access