Women’s Health Providers To U.S. Supreme Court: Texas Clinic Shutdown Law Defies Constitution, Decades of Precedent

(PRESS RELEASE) A Texas law designed to shut down abortion clinics under the guise of improving women’s health care is unconstitutional and in clear violation of prior U.S. Supreme Court rulings, according to a brief submitted at the nation’s top court late yesterday.

The brief, filed by Texas women’s health care providers, outlines the very real harm Texas women will face if the nation’s highest court affirms a June 2015 ruling from the U.S Court of Appeals for the Fifth Circuit that allowed the law’s most damaging provisions to take effect. The brief further details how the law violates years of Supreme Court rulings that protect a woman’s reproductive decisions from undue interference, as demonstrated by the law’s “undisputed and predictable effect…to close the vast majority of Texas abortion clinics.” 

The case challenges two provisions of the 2013 Texas law HB2, which threatens to reduce the number of clinics in Texas to fewer than 10 inflict lasting harm on women’s health in the state. The first provision requires that all abortion providers obtain local hospital admitting privileges, a medically unnecessary mandate that has already forced the closure of more than 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.

The brief comes less than two months after the U.S Supreme Court—which has already intervened twice to keep clinics open in Texas—agreed to review the law. Oral arguments before the nation’s highest court are scheduled for Wednesday, March 2, 2016.

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

“Texas politicians passed this law to deny women their basic rights guaranteed by the Constitution and decades of Supreme Court rulings.

“These crippling, medically unnecessary regulations would force compassionate providers across the state to close their doors and leave millions of women with nowhere to turn for the care they need.

“This sham law is not only an insult to the basic dignity of Texas women, but also to the Supreme Court, which has repeatedly protected a woman’s right to make personal decisions about health and family.”

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. The opinion of the court 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 nation 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 on a law that could shutter all but one clinic in the state.  Courts have also 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 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 Texas health care providers asked the U.S Supreme Court to review the case in September 2015, a diverse group of medical and public health organizations, state attorneys general, and leading legal scholars urged the U.S. Supreme Court to accept the case a month later. On November 13, 2015, the nation’s highest court agreed to review Texas’ clinic shutdown law. 

Clinic closures have been shown to create costly increases in wait times and push some women to take matters into their own hands. Recent research demonstrates that at least 100,000 Texas women of reproductive age have ever attempted to end a pregnancy without medical assistance.  The findings suggest that self-induction is disproportionately prevalent in Texas, where extreme clinic shutdown laws have drastically limited women’s access to reproductive care.