US Supreme Court to Review Texas Clinic Shutdown Law

The U.S. Supreme Court today agreed to review a Texas law designed to shut down clinics that provide safe, legal abortion services under the guise of improving women’s health. The case seeks to overturn a June 2015 decision from the U.S. Court of Appeals for the Fifth Circuit that would have led to the closure of all but 10 clinics in Texas if the Supreme Court had not immediately intervened to keep those clinics open. The Court also today agreed to review Mississippi’s arbitrary and medically unwarranted law specifically designed to shutter the last abortion clinic in the state.  Oral arguments are expected to be scheduled for both cases in 2016.

The case, Whole Woman’s Health v. Cole, was brought by the Center for Reproductive Rights on behalf of a coalition of women’s health providers seeking to permanently block provisions of a 2013 omnibus anti-abortion law known as HB2 that singles out abortion providers for medically unnecessary regulations. The law has been denounced by leading national medical experts, including the American Medical Association and the American College of Obstetricians and Gynecologists.

Said Nancy Northup, president and CEO of the Center for Reproductive Rights:

“Today the Supreme Court took an important step toward restoring the constitutional rights of millions of women, which Texas politicians have spent years dismantling through deceptive laws and regulatory red tape.                                        

“For more than four decades, the Supreme Court has agreed that the U.S. Constitution protects every woman’s right to make her own decisions about her health and family. Now the court must reject the schemes of politicians who believe the Constitution and the court’s precedents do not apply to them.

“Playing politics with women’s health isn’t just wrong. It’s dangerous for many women who will have no safe and legal options left where they live, and may be forced to take matters into their own hands.

“We are confident the court will recognize that these laws are a sham and stop these political attacks on women’s rights, dignity, and access to safe, legal essential health care.”

The case challenges two provisions of HB2 that, taken together, would have a devastating impact on women’s health in Texas. The first provision requires that all abortion providers obtain local hospital admitting privileges, a mandate which has already forced the closure of over half the clinics in the state. The second provision requires every reproductive health care facility offering abortion services to meet the same hospital-like building standards as an ambulatory surgical center (ASC), which can amount to millions of dollars in medically unnecessary facility updates.

Said Amy Hagstrom Miller, president and CEO of Whole Woman’s Health: 

“Today, my heart is filled with hope. Although this is the first step in a much longer process, I am hopeful that the Supreme Court will uphold the rights that have been in place for four decades and reaffirm that every woman should be able to make her own decision about continuing or ending a pregnancy.   I have hope for my staff members, who, for years, have poured themselves into providing Texas women with high-quality and comprehensive reproductive health care. And most of all, I have hope for the families and communities all across Texas who now may be able to get the safe and comprehensive care they need from a clinic they trust.”

Since Roe v. Wade was decided in 1973, the U.S. Supreme Court has continually maintained women have a constitutional right to decide whether to end or continue a pregnancy— a right that is central to personal dignity, autonomy, and the liberty protected by the 14th Amendment.

Further, the Court’s 1992 decision in Planned Parenthood v. Casey reaffirmed a woman’s constitutional right to abortion and held that states could not enact medically unnecessary regulations meant to create substantial obstacles for a woman seeking to end a pregnancy. Justices Kennedy, O’Connor, and Souter made clear that “these matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the 14th Amendment.”

Clinic shutdown laws have swept the South in recent years, threatening to further devastate abortion access in a region already facing limited availability of reproductive health care services.  The last abortion clinic in Mississippi is awaiting a decision on whether the U.S. Supreme Court will review its state’s clinic shutdown while health care providers in Louisiana are awaiting a federal court ruling which could shutter all but one clinic in the state.  Courts have blocked similar measures in Oklahoma, Tennessee, Alabama, Wisconsin and Kansas. 

Case History: Whole Woman’s Health v. Cole (formerly Whole Woman’s Health v. Lakey)

Following a lawsuit brought by the Center for Reproductive rights on behalf of Whole Woman’s Health and several other Texas health care providers in April 2014, a federal district court blocked two of the most harmful restriction of Texas’ House Bill 2 (HB2) in late August 2014: the ambulatory surgical center requirement and the admitting-privileges requirement.

The U.S. Court of Appeals for the Fifth Circuit stayed that decision in large part on October 2, 2014, allowing the requirements to immediately take effect. Because forcing hospital-style surgery center building and staffing requirements on every clinic would amount to a multi-million dollar tax on abortion services, all but 7 reproductive health care facilities in the state were prevented from offering safe and legal abortion services for 12 days. On October 14, 2014, the U.S. Supreme Court reinstated the injunction in large part, allowing many of the previously closed clinics to reopen their doors while the state’s appeal moved forward.

On June 9, 2015, the Fifth Circuit’s final decision in the appeal once again upheld the state restrictions in substantial part, this time threatening to shutter all but 10 abortion providers in the state – one of which would be subject to severe restrictions that would drastically limit its ability to provide abortion care. Once again, the U.S. Supreme Court stepped in to block the Fifth Circuit’s decision and allow the clinics to remain open while the legal challenge continued.

The clinics and physicians in this challenge are represented by Stephanie Toti, David Brown, Janet Crepps, and Julie Rikelman of the Center for Reproductive Rights, J. Alexander Lawrence of the law firm Morrison & Foerster, and Austin attorneys Jan Soifer and Patrick O’Connell of the law firm O’Connell & Soifer.