Women’s Health Care Providers Ask U.S Supreme Court to Take On Texas Clinic Shutdown Law

As few as 10 clinics will remain in Texas if nation’s highest court fails to intervene

(PRESS RELEASE) Today a coalition of women’s health care providers represented by the Center for Reproductive Rights took their fight against Texas’ clinic shutdown law to the nation’s highest court. The group formally requested that the U.S. Supreme Court review a June 2015 decision from the U.S. Court of Appeals for the Fifth Circuit, which upheld a law that would close more than 75 percent of abortion clinics in Texas and cut off access to safe and legal abortions for millions of Texas women.

The Supreme Court has twice before stepped in to block enforcement of the law—once in October 2014 and then again in June 2015. Without Supreme Court intervention, only 10 clinics will remain open in a state that had 41 prior to the law’s enactment.

Today’s filing asks the Court to formally review the case to permanently block enforcement of two of the most harmful components of HB2. 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 Nancy Northup, president and CEO of the Center for Reproductive Rights:

“Texas politicians are trying to sneak around the Constitution and more than four decades of Supreme Court precedent with sham laws that do nothing to improve women’s health care. This Court has the power to stop the sham.

“Without the Court’s intervention, the impact on Texas women will be immediate and devastating, imposing insurmountable burdens on their access to essential reproductive health care statewide.

“The Constitution protects every woman’s right to make her own decisions about whether and when to end a pregnancy. We are confident that the Court will take this opportunity to once again protect those rights for the women of Texas.”

Said Amy Hagstrom Miller, president and CEO of Whole Woman’s Health, lead plaintiff in the case:

“I’ve said it before and I’ll say it again: these restrictions have nothing to do with protecting women and everything to do with closing down clinics and pushing abortion care out of reach.

“When politicians force clinics to close, they exponentially multiply the number of devastating albeit unnecessary hurdles that Texas women must overcome when seeking reproductive health services. Our ability to get safe medical care should not depend on whether we have the resources necessary to navigate a horrific and complex obstacle course dreamt up by anti-choice lawmakers. This is the real world and these laws have real implications on real women’s lives. We’re hopeful that the Supreme Court will take a stand, hear our case, and remind lawmakers that women’s health is not a game.”

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—protected by the 14th Amendment right to liberty, which is central to personal dignity and autonomy.

Further, the Court’s 1992 decision in Planned Parenthood v. Casey reaffirmed a woman’s constitutional right to abortion and rejected 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.”

Major medical groups oppose the types of restrictions found in Texas’ clinic shutdown law. The American Medical Association (AMA) and the American College of Obstetricians and Gynecologists (ACOG) jointly submitted an amicus brief opposing the law to the Fifth Circuit, stating that “H.B. 2 does not serve the health of women in Texas but instead jeopardizes women’s health by restricting access to abortion providers.” Medical experts confirm that legal abortion care in the U.S. is extremely safe, and that laws like Texas’ would do nothing to make it safer.

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 law when the Court’s term starts on October 1 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, and Alabama.

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 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. 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 Center for Reproductive Rights has now asked the nation’s highest court to formally review the Texas law. The Court is likely to decide whether it will hear the case sometime before the end of 2015.

The clinics and physicians in this challenge are represented by Stephanie Toti, David Brown, Julie Rikelman and Janet Crepps 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.

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