HB 2 Oral Arguments

They vowed to take it to the U.S. Supreme Court – and today they did.

illustration by Jason Stout

The apex of nearly three years of fighting to defeat a set of draconian clinic regulations, Texas abortion providers faced off against state attorneys at the nation’s highest court on Wednesday. The case, considered the most pivotal of its kind in more than two decades, could very well define abortion rights for the entire country.

During the one-hour of oral arguments, conservative-leaning justices pressed plaintiffs on whether or not the cause for sweeping clinic closures could actually be tied to the regulations while liberal justices questioned the state’s medical justification for a law that will destroy access to abortion for millions of women. Outside the courtroom thousands of pro-choice advocates, organized by the Center for Reproductive Rights, rallied to oppose the law, with a smaller, less vocal group of anti-choice activists standing amid the cluster.

The much anticipated case, Whole Woman’s Health v. Hellerstedt (formerly v. Cole), filed by a group of Texas abortion providers including Whole Woman’s Health, Austin Women’s Health Center, Killeen Women’s Health Center, and Reproductive Services, challenges two of the four provisions of 2013 House Bill 2. It seeks to repeal a rule in place that requires physicians to obtain admitting privileges at a hospital within 30 miles of where the procedure is performed, and hopes to block an impending requirement that forces clinics to transform into ambulatory surgical centers (ASCs), a costly undertaking (up to $3 million in construction costs) that would push mostly independent clinics in the state into bankruptcy. While found unconstitutional by federal district Judge Lee Yeakel, the law was last upheld by the conservative 5th Circuit Court of Appeals.

Stephanie Toti, lead counsel with the Center for Reproductive Rights, described the rules as onerous, medically unjustified, and extremely burdensome. “The Texas requirements undermine the careful balance struck in Casey between states’ legitimate interests in regulating abortion and women’s fundamental liberty to make personal decisions about their pregnancies,” said Toti. “They are unnecessary health regulations that create substantial obstacles to abortion access.”

Toti isn’t alone in her reasoning – she has the backing of several major mainstream medical organizations, including the American Medical Association and the American College of Obstetricians and Gynecologists, who filed amicus briefs with the court in January calling the rules groundless and a threat to women’s health, as the Chronicle previously reported. It’s clear how the law has devastated the Texas health care network, plaintiffs argued: HB 2 has led to the closure of more than half of the state’s clinics. Before HB 2 went into effect, the state was home to 40 abortion clinics. Today only 19 exist; if the ASC rule was enacted as few as 10 clinics would survive, leaving abortion access further than 100 miles for more than one million Texas women. Clinics in Austin, Dallas, Fort Worth, Houston, San Antonio, and possibly McAllen would only remain. “Collectively, the one-two punch of these requirements would be responsible for the closure of nearly 30 [clinics],” said Toti, stressing the damage inflicted if the ASC rule kicks in.

Protesters gather at the U.S. Supreme Court. (photo by Mary Tuma)

The unwarranted law’s impact creates an undue burden on abortion-seeking women due to the added barriers of travel time and cost, further aggravated by strained clinics compensating for surrounding closures, Toti argued. While conservative justices voiced skepticism over claims that remaining clinics lack the capacity to handle an influx of patients, plaintiffs pointed to the numbers and common sense: Before HB 2, roughly 65 to 70,000 abortions were performed annually in Texas; ASC clinics, the only facilities that would be open if SCOTUS upholds HB 2, performed about 14,000 procedures a year – the math says ASCs would have to expand services by five fold, a seemingly impossible task. The dearth of clinics and barriers to access has the potential to push women later into pregnancy (when it gets riskier) or possibly force women to resort to self-induction. Due to this, allowing the law to stand erodes the balance struck in Planned Parenthood v. Casey, Toti argued. The 1992 Supreme Court case set the framework for how far a state can restrict abortion – as long as abortion laws actually further the health and safety of women and do not place a “substantial obstacle” in the path of a woman seeking an abortion, states are free to enact such laws. But, with a medically unjustified law that wreaks grave damage to women’s basic rights, that’s far from the case here, plaintiffs argued.

Justice Samuel Alito harshly questioned Toti about the causation of clinic closures. “There is very little specific evidence in the record in this case with respect to why any particular clinic closed,” he said. (The string of argumentative, rapid-fire questions – mainly from Alito and Chief Justice John Roberts – pushed Toti away from her 20 minutes of allotted time, compelling Justice Ruth Bader Ginsburg to point out the delay, scoring Toti an extra five minutes at the end of arguments.) In defense, Toti pointed to the obvious timing of the many closures around the enforcement of HB 2 – eight closed prior to the admit privileges rule while 11 closed on the day it was enacted. Toti also said she held direct evidence for at least 12 of the shuttered clinics that she could supply the court. Referring to the brief time period in which the ASC rule temporarily went into effect immediately shuttering 12 clinics, Justice Elena Kagan, pointedly said, “It's almost like the perfect controlled experiment as to the effect of the law, isn't it? It's like you put the law into effect, 12 clinics closed. You take the law out of effect, they reopen.”

Borrowing 10 minutes of the plaintiff time, U.S. Solicitor General Donald B. Verrilli spoke against HB 2, saying that the law and the many obstacles it imposes is the very “definition of an undue burden.” Not mincing words, Verrilli said HB 2 is the most extreme abortion law that has come before the high court since Casey, and its justifications are “far weaker” than anything the Court has permitted. “I think that if you do find that this law is upheld, what you will be saying is that this right [to an abortion] really only exists in theory and not in fact going forward and that the commitments that this Court made in Casey will not have been kept,” he said.

Protesters gather at the U.S. Supreme Court. (photo by Mary Tuma)

Next, liberal justices pelted Texas Solicitor General Scott Keller, who has defended the law as necessary to protect women’s health and safety, with critical questions, mainly forcing the state’s attorney to justify the medical reasons behind HB 2 – a difficult task considering the scant evidence the state has provided to back up its claims.

Justices Ginsburg, Stephen Breyer, and Sonia Sotomayor highlighted the double standard set by the law: Clinics that perform outpatient procedures with higher complication rates than abortion, such as colonoscopies and liposuction, aren’t forced to adhere to the same ASC requirement. Why, then, would the Texas Legislature seek to regulate a safer procedure? As Ginsburg put it plainly, “What is the legitimate interest in protecting their health? What evidence is there that the prior law was not sufficiently protective of the women's health? … As far as we know, this is among the most safe and the least risk procedures. So was the problem that the Legislature was responding to that it needed to improve the facilities for women's health?” (“Isn't this a self-created problem?” Sotomayor followed up later. We sure can take a guess .…) Keller alluded to Pennsylvania’s Kermit Gosnell scandal despite the fact Texas abortion clinics are highly regulated, receiving annual inspections well before HB 2. When pressed again, Keller responded, “[L]egislatures react to topics that are of public concern … maybe it wouldn't rise to the same level of a Gosnell problem, but the Legislature can still act to make abortion safer, which is precisely what Texas did here.”

Calling out the hypocrisy didn’t stop there. Describing the logic as “odd,” Ginsburg pointed to the state directing women of El Paso to travel to New Mexico for abortion; the neighboring state doesn’t hold the same clinic regulations found in HB 2, which seems to contradict the state’s claim that their goal is to protect women’s health. “If that's alright for the women in the El Paso area, why isn't it right for the rest of the women in Texas?” she asked. Keller responded that the New Mexico abortion clinic was within one-mile of the El Paso metroplex and already frequented by residents there. Ginsburg also poked holes in the logical flaw of the admitting privileges rule, saying, “You need to have access to a hospital within 30 miles. 30 miles of what? 30 miles of the surgical center when the woman lives at a much greater distance? And if she's going to go to any hospital, it will be in her local community, not near the surgical center.” Breyer, echoing his liberal colleagues, continued the argument, pointing out the state has shown no evidence to bolster the need for such a rule: “So what is the benefit to the woman of a procedure that is going to cure a problem of which there is not one single instance in the nation….”

Seen as the swing vote, Justice Anthony Kennedy gave little indication of which way he will go, only suggesting the case be remanded to gather more evidence of the law’s impact. He also questioned if the law was meant to increase surgical abortions, saying medical abortions are up nationwide but down significantly in Texas.

Hitting the nail on the head, Ginsburg, in the final moments of the hearing, refocused the argument on the population most affected by HB 2 – disadvantaged women. While the state points to the fact women in major metros will still have an abortion provider in their city if HB 2 is upheld, they neglect to include the fate of millions of women in West Texas and the Rio Grande Valley, many of whom are rural, poor, and/or immigrants, and thus doubly impacted by the ever rising hurdles to basic reproductive health care. “Don’t we know from Casey that the focus must be on the ones who are burdened and not the ones who aren't burdened? The district court said, this is not a problem for women who have means to travel, that those women will have access to abortion anyway. You don't look to all the women who are getting abortions. You look only to women for whom this is a problem.”

Just before arguments began, the Chronicle caught up with Amy Hagstrom Miller, lead plaintiff and Whole Woman’s Health president. Miller was forced to shutter two of her six clinics, including her flagship facility in Austin, as a result of HB 2. If the Supreme Court upholds the law, only one ASC in San Antonio is guaranteed to survive (her McAllen clinic was given an exemption by the 5th Circuit but with specific – and difficult – caveats). “Today is it – we finally get our day in court,” Miller told the Chronicle. “I'm really hopeful and looking forward to this. It's been a very long, arduous journey, but in my mind, it's nothing compared to what Texas women will face if we don't strike down HB 2.”

At the base of the Supreme Court steps, a swarm of pro-choice activists donned purple clothes and toted signs supportive of abortion rights. For some, the road to the high court started years ago. Lindsay Rodriguez, an Austin resident with the National Network of Abortion Funds, saw the historic day as a full circle event. She, like thousands of pro-choice Texans, flocked to the Capitol in the summer of 2013 to stand against HB 2 and its predecessor, defeated by a 13-hour filibuster.

“This feels enormous; it’s the culmination of many years of fighting,” said Rodriguez. “It’s frustrating to see the law pass despite so much opposition, but it was a pivotal point in Texas – people really realized women are under attack and started fighting like never before. And that’s why we’re here today, to make sure those on the front lines don’t see their access to health care devastated any more.”

The Court has until June to make a final ruling.