Leading National Health Organizations, Legal Scholars, and State Attorneys General Oppose Texas Clinic Shutdown Law

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American Medical Association and 12 state Attorneys General among broad coalition urging U.S. Supreme Court to avert impending health crisis
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(PRESS RELEASE) A diverse group of medical and public health organizations, state attorneys general, and leading legal scholars today urged the U.S. Supreme Court to accept a case brought by the Center for Reproductive Rights seeking to strike down Texas’ deceptive clinic shutdown laws.

In a series of amicus briefs filed with the nation’s highest court, the groups – which include the American Medical Association, the American College of Obstetricians and Gynecologists and the New York Attorney General’s office – outline the ongoing women’s health crisis in Texas triggered by the state legislature’s passage of the anti-choice omnibus bill, HB2. The briefs highlight the harm that women in Texas and across the nation will face if the high court fails to intervene, and emphasize the need for meaningful judicial review to prevent states from passing sham laws unsupported by facts, evidence or expert medical opinion.

The briefs also thoroughly refute deceptive claims made by Texas politicians that HB2 serves women’s health, exposing the many ways in which the law drives women’s health providers out of business and places substantial barriers between women and their access to constitutionally protected care. HB2 has already succeeded in shuttering more than half of the 42 clinics previously operating in the state, and if the Supreme Court does not accept the case, Texas would be left with as few as 10 clinics to serve a population of 5.4 million women of reproductive age.

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

“We’re proud to be joined by the nation’s top medical and legal authorities in urging the U.S. Supreme Court to end this cynical attack on women’s health, safety and constitutional rights.

“Taken together, these briefs paint a deeply troubling picture of the looming women’s health crisis in Texas and the dangers of allowing states to pass pretextual laws without meaningful oversight from the courts.

“The flimsy claims that these sham laws provide any health benefit for women simply do not hold up in the face of facts, common sense and the overwhelming consensus of medical experts.”

Said Mark S. DeFrancesco, MD, MBA, President of the American College of Obstetricians and Gynecologists:

“Access to reproductive services, including abortion care, is essential for millions of American women. By making it harder for women to get the care that they need, laws like Texas’s ultimately jeopardize safety, impose enormous burdens on women, and represent attacks on women’s health. Abortion is safe and legal – and it is safe because it is legal. For the sake of American women, we need to keep it that way.”

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

“We are counting on the Supreme Court to hear our call for justice, to put an end to politicians’ interference in personal health decisions, and to allow Whole Woman’s Health to continue serving women and families across the great state of Texas. 

“Every woman deserves the compassion, respect and dignity of being able to safely and legally end a pregnancy if she needs to, no matter where she lives. Texan women deserve to access safe abortion care just like all Americans, and we call on the highest court in the land to intervene on their behalf.”

The briefs include:

  • A medical brief, signed by the American Medical Association, the American College of Obstetricians and Gynecologists, the American Academy of Family Physicians and the American Osteopathic Association. (link)
  • A public health brief, signed by the American Public Health Association (link)
  • A “facts on the ground” brief, signed by the National Abortion Federation (link)
  • A brief highlighting the importance of meaningful judicial review and criticizing the Fifth Circuit’s “uncritical deference” to Texas, signed by the Attorneys General of New York, California, Connecticut, Hawai’i, Illinois, Maine, Maryland, Massachusetts, Oregon, Vermont, Virginia and Washington. (link)
  • A brief explaining that procedural rules do not bar relief in this case, and urging the Court to grant review to provide guidance to lower courts, signed by leading legal scholars Michael Dorf, Helen Hershkoff, Gillian Metzger, Neil Siegel, and David Strauss.  (link)

Representing a coalition of women’s health care providers, the Center for Reproductive Rights last month formally requested that the nation’s highest court review a June 2015 decision from the U.S. Court of Appeals for the Fifth Circuit, which upheld two of the law’s most harmful components: a requirement that all abortion providers obtain local hospital admitting privileges, and a provision requiring every clinic offering abortion services to meet the same hospital-like building standards as an ambulatory surgical center (ASC) – at a cost of millions of dollars in medically unnecessary facility upgrades.

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 5 while health care providers inLouisiana are awaiting a federal court ruling which could shutter all but one clinic in the state.  Courts have blocked similar measures in Oklahoma and Alabama. 

Recent impact research from the Texas Policy Evaluation Project (TxPEP) exposes how clinic closures create substantial delays for women seeking essential health care, in some cases cutting off access to abortion services altogether.

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.”

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. 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, 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.

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