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The Supreme Court has made it clear that women have a constitutional right to abortion and that states cannot pass laws that create an undue burden for women exercising that right. The Supreme Court’s 1992 decision in Planned Parenthood v. Casey, which affirmed the landmark 1973 Roe v. Wade decision, explained:
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.
In an attempt to sneak around the Constitution and four decades of Supreme Court precedent, anti-choice politicians in Texas passed a law known as HB2 in 2013. Under the pretext of protecting women’s health and safety, HB2 buries clinics under medically unnecessary regulations so burdensome as to make it vastly more difficult, if not impossible, to obtain safe and legal abortion care.
Should politicians in Texas succeed in their underhanded efforts, HB2 would leave at most 10 providers in all of Texas—the second-most populous state in the nation—forcing women to travel hundreds of miles or turn to drastic or illegal options.
In 2013, Texas legislators passed HB2, a sweeping measure that imposes numerous restrictions on access to abortion, most notably the following requirements:
These requirements unfairly single out women’s health care providers and do not apply to other, comparable medical procedures or practices. They serve only to drive reputable, experienced reproductive health care providers out of practice.
Together, these requirements would shutter all but 9 or 10 abortion clinics in a state with 5.4 million women of reproductive age, and leave more than 500 miles between San Antonio and the New Mexico border without a single clinic.
Prior to HB2, there were more than 40 facilities across the state that provided abortions. As of October 2015, that number has dwindled to 19. This deceptive law has proven to create higher costs, lengthier delays, and extra steps for women seeking abortion care. In the process, HB2 punishes women for their decision to exercise their constitutional right to end a pregnancy.
It’s clear the politicians behind this measure are lying about their true intentions; they’ve all but admitted as much. A few months ahead of signing HB2 into law, Texas governor Rick Perry declared at an anti-abortion rally, “an ideal world is one without abortion. Until then, we will continue to pass laws to ensure that they are rare as possible.” In July 2015, Texas state representative and HB2 author Jodie Laubenberg stated “I am so proud that Texas always takes the lead in trying to turn back what started with Roe v. Wade.”
Leading medical experts and organizations strongly oppose these medically unnecessary requirements on women’s health care services.
The American Medical Association, the American College of Obstetricians and Gynecologists and other leading health care experts are united in opposing these burdensome regulations, arguing that they serve no medical purpose, interfere in the doctor/patient relationship, and do nothing to promote women’s health.
The Center for Reproductive Rights filed a lawsuit on April 2, 2014, on behalf of five Texas clinics and three physicians and their patients, challenging the ASC and admitting privileges requirements. The abortion providers represented by the Center are challenging these laws because the regulatory burdens they impose will dramatically reduce the number and geographic distribution of medical facilities in the State where women can access safe abortion, while providing no benefit to abortion patients whatsoever. The restrictions create barriers to safe and legal abortion that unduly burden women’s right to access abortion services, in violation of the 14th Amendment to the U.S. Constitution.
The admitting privileges requirement has been in effect since October 31, 2013, and the ASC requirement was scheduled to take effect on September 1, 2014. After an expedited trial, the federal district court blocked enforcement of the measures on August 29, 2014, finding both requirements, independently and collectively, impose an unconstitutional undue burden on women's access to abortion in violation of the 14th Amendment to the U.S. Constitution.
On October 2, 2014, the U.S. Court of Appeals for the Fifth Circuit issued a ruling that would allow both laws to be enforced while the case moved forward, but the U.S. Supreme Court lifted that stay in large part on October 14, 2014, prohibiting the enforcement of the ASC requirement statewide and prohibiting enforcement of the admitting privileges requirement against the plaintiffs’ clinics in McAllen and El Paso.
On June 9, 2015, the Fifth Circuit ruled in favor of the challenged requirements in large part. Its opinion (as modified on June 19) authorized Texas to enforce the challenged requirements against all Texas abortion facilities except the McAllen clinic operated by plaintiff Whole Woman’s Health. The opinion subjected the McAllen clinic to the following limitations: the clinic would have to meet staffing and administrative requirements designed for ASCs; it would be limited to treating patients that reside in the four counties of the Lower Rio Grande Valley (and therefore would have to turn away women in neighboring counties, even though the next closest abortion provider would be in San Antonio, well over 200 miles away); and it would be permitted to employ only a single physician (who is past retirement age).
On June 29, 2015, the U.S. Supreme Court stepped in again and stopped enforcement of the law while the Center prepared a request for the Supreme Court to review the case. As a result, the ASC requirement remains blocked statewide and the admitting privileges requirement remains blocked with respect to the clinics in McAllen and El Paso pending further action by the Supreme Court. On September 2, 2015, we filed a petition for the Supreme Court to review the case.
Plaintiff(s): Whole Woman’s Health, Austin Women’s Health Center, Killeen Women’s Health Center, Nova Health Systems d/b/a Reproductive Services; Sherwood C. Lynn, M.D.; Pamela J. Richter, D.O.; and Lendol L. Davis, M.D., each on behalf of themselves and their patients
Co-Counsel/Cooperating Attorneys: J. Alexander Lawrence at Morrison & Foerster LLP; Jan Soifer and Pat O’Connell at O’Connell and Soifer LLP