SCOTUS Hears Arguments for Texas Abortion Case

The Supreme Court is deliberating an abortion bill that may present new challenges for students at Sam Houston State University and women across Texas.

If the bill is upheld it would essentially mean Huntsville residents would have to make two drives to the closest clinic in Houston over a period of two days or would be forced to spend the night in the city.

SCOTUS heard arguments on a case challenging the constitutionality on March 2.

The bill – which imposes strict regulations on abortion providers, including requiring doctors to have admitting privileges at a hospital within 30 miles and demanding physical modifications to the provider’s buildings – is being examined under a 1992 precedent which set the standard that a state cannot uphold regulations that are an “undue burden” on women seeking the procedure.

Republicans argue the rules help protect women’s health, but opponents claim they are efforts to close abortion providers.

“The undue burden standard is key to the outcome of the case,” said John Domino, Ph.D., a political science and Supreme Court case law professor at SHSU. “A burden is undue if it is wholly unreasonable, or if the right to an abortion exists in theory.”

Whole Woman’s Health v Hellerstedt – the case currently under deliberation in the court – will determine whether or not HB2 places an undue burden on Texas women.

Eight clinics in Texas shut down in anticipation of enforcement before HB2’s regulations were initially enforced, and 11 more shut down after enforcement began.

Delma Limones, a representative for Whole Woman’s Health, said the closures due to HB2 or prior restrictions on abortion care can negatively impact women in Huntsville.

“I know that before HB2 went into effect there was a clinic in College Station, which was closer to your campus community than Houston is,” she said.

That clinic closed in 2013 due to cuts to family planning funding in 2011 and was the only abortion provider within an hour of Huntsville.

Texas law requires that women who live less than 100 miles from a clinic have to wait 24 hours between the consultation and the procedure. According to Limones, this could make it logistically difficult for students and residents in Huntsville who can’t afford to stay overnight or take the time off to travel the extra distance.

Texas Solicitor General Scott Keller, arguing on behalf of Commissioner John Hellerstedt of the Texas Department of State Health Services in the Supreme Court oral arguments, addressed the same regulation during the hearing on March 2.

“Even in [Planned Parenthood v Casey], the district court found over 40 percent of Pennsylvania women were going to have to travel at least one hour, sometimes over three hours, and there was a 24-hour waiting period,” Keller said. “Texas reduces that waiting period to two hours for travelling over 100 miles.”

Because SHSU students live within 100 miles of the nearest clinic, women seeking the procedure would have to either make two trips with roughly four hours of drive time per day or spend the night in the city.

According to Keller, roughly 25 percent of Texas women who are of reproductive age live more than 100 miles from the nearest clinic that meets HB2’s standards.

El Paso women seeking abortions, he said, could go to a clinic in New Mexico to have the procedure done.

Justice Ruth Bader Ginsberg found that response odd.

“New Mexico doesn’t have any surgical ASC requirement, and it doesn’t have any admitting privileges,” she said. “So if your argument is right, then New Mexico is not an available way out for Texas because Texas says to protect our women, we need these things.”

Travel, however, isn’t the only issue at hand when deciding whether HB2 causes undue burden.

The American Medical Association provided an amicus brief that detailed the lack of medical necessity for abortions to be provided in an Ambulatory Surgical Center or for providing doctors with admitting privileges.

An ASC has specific regulatory requirements to uphold – from the width of corridors to the size of janitors’ closets. Admitting privileges remain with a doctor.

“One of our doctors has never – since he’s been providing abortions – had to admit a patient because it’s usually very safe,” Limones said. “In reality, a lot of hospitals don’t want to give out admitting privileges because it’s about bringing in the hospital money.”

Hospitals, she pointed out, are a business and because complications from the procedure are so rare they’re hesitant to give admitting privileges to doctors who will not bring in patients.

The enforcement of admitting privileges alone seem to have led to the closure of 12 clinics, but once the enforcement of the law was lifted, they reopened.

“It’s almost like the perfect controlled experiment as to the effect of the law,” Justice Elana Kagan said in the March 2 hearing. “It’s like you put the law into effect, 12 clinics closed. You take the law out of effect, they reopen.”

Keller said that the risks involved in the procedure justify the law.

“Planned Parenthood admitted that over 210 women annually are hospitalized because of abortion complications,” he said, going on to suggest that Texas’ purpose in passing HB2 is constitutionally relevant.

According to Keller, Texas believes requiring clinics that provide abortions to be ASCs and have admitting privileges will help to protect the women’s health.

The regulations would cost millions of dollars to comply for clinics that don’t meet the standards set, and with closures problems with capacity could push back the ability of women to get the procedure before the ban.

With Justice Antonin Scalia’s passing, Justice Anthony Kennedy is in a unique position. Because there are only eight justices currently seated, the way he chooses to vote could mean several different things.

Kennedy is the traditional swing vote on the court, but that role takes added importance now. Conventional wisdom argues that three conservative judges will support the law, while four liberal justices will oppose it. Scalia would have certainly supported the law, making a tie impossible; with his passing a tie is possible.

If the case is remanded back to the Fifth Circuit, Domino said that SCOTUS will send down stipulations on what needs to be addressed, such as examination of facts on whether HB2 creates an undue burden and legal or constitutional questions that need to be addressed.

If Justice Kennedy decides to uphold HB2 and the hearing ends in a tie, it will be as if SCOTUS never had a hearing and the Fifth Circuit decision to uphold HB2 will stand.

If he decides against upholding HB2, then SCOTUS will have reached a five to three majority and HB2 will be struck down.

The latest a decision will be returned is in June at the end of the court’s term.

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