Texas Awaits Supreme Court HB 2 Ruling

Protesters gathered in front of the Supreme Court in early March. (Photo by Mary Tuma)

In the next few weeks the U.S. Supreme Court, in one of the most significant reproductive rights cases in more than two decades, is expected to determine the future of abortion access in Texas and possibly for other states across the country. SCOTUS has until the end of June to issue a ruling, and a decision could come as early as this Thursday.

“We are optimistic that the justices will say once and for all politicians cannot use flimsy health justifications to impose regulations that place substantial obstacles in front of a woman seeking to end a pregnancy,” said Nancy Northup, president of the Center for Reproductive Rights, the group challenging Texas’ abortion-restrictive law, during a conference call Tuesday morning. “This is a watershed moment in the battle for reproductive rights. It’s an opportunity for the Supreme Court to protect the health and safety of women and put a stop to the onslaught of laws restricting access to safe and legal abortion.”

Whole Woman’s Health v. Hellerstedt challenges two provisions of House Bill 2, the draconian 2013 package law pushed by anti-choice Texas legislators: a rule that forces physicians to secure admitting privileges at a hospital within 30 miles of the abortion clinic, and regulations that transform clinics into ambulatory surgical centers (ASC). The costly ASC rule has yet to take effect, but if upheld it’s expected to shutter all but as few as 10 clinics located in major metro areas. In Austin, only the Planned Parenthood ASC on Ben White Blvd. would survive. The other parts of HB 2 have led to an abortion care crisis – more than half of the states’ abortion clinics have closed, leaving 19 out of an initial 41 clinics.

Since oral arguments were held on March 2, health providers, patients, and advocates have waited anxiously for a SCOTUS ruling. While the state contends the rules are meant to protect the health and safety of women, attorneys on behalf of abortion care providers point to the devastating undue burden women in Texas face due to laws that fail medical justification, an argument bolstered by major mainstream medical groups. On a Tuesday morning conference call, attorneys challenging the law and a key plaintiff reiterated how much is at stake for Texas women.

"We have a situation in Texas where a right exists on paper, but it’s out of reach for a tremendous amount of Texas women,” said lead plaintiff Amy Hagstrom Miller, founder and CEO of Whole Woman’s Health clinics. “And we’ve seen a disproportionate effect on women of color, young women, and rural women.”

Research conducted by the Texas Policy Evaluation Project has shown women are now facing increased travel distances to the closest clinic (up to 500 miles), longer wait times for appointments (up to 20 days), and higher out-of-pocket costs. The onerous barriers have forced some women to delay their abortions or forgo them altogether. Evidence also suggests more Texas women will turn to potentially life-threatening abortion self-induction if the final part of HB 2 stands.

If the law is upheld it will have not just a devastating impact on Texas women but a dangerous ripple effect across the country and will empower other lawmakers to pass similar “sham” laws, said Northup. Here are the possible outcomes: If Justice Anthony Kennedy sides with conservative colleagues, the justices see a 4-4 split, which would allow the 5th Circuit Court of Appeals ruling that found the law constitutional to stand; however, it does not set legal precedent. Although attorneys said it’s highly unlikely this late in the game, the justices could also send the case back to the 5th Circuit (as Kennedy signaled interest in during oral arguments). That means there's a slight possibility the case could once again be appealed to the high court. Attorneys also expressed skepticism about a possible ruling that upholds one of the provisions while striking the other down, saying that would only likely happen based on procedural or technical grounds. The legal defenders focused more heavily on a positive ruling, voicing unrelenting confidence that the justices would find in their favor.

“We really look forward to ending what we’ve come to call ‘an era of uncertainty’ that we’ve been enduring for the last three and half years,” said Miller, while cautioning that even a favorable ruling doesn’t mean closed clinics can be rebuilt overnight. “[If we win] we will have the opportunity to take a stand for clinics all across the country and for the women and families that they serve and say we can put a stop to these bully politicians.”