by Kelli Garcia, Senior Counsel, National Women’s Law Center

The Supreme Court earlier this week stayed enforcement of key provisions of HB2—Texas’ sweeping anti-abortion law—pending the Court’s decision whether to hear an appeal in the case. Only 9 abortion clinics would have remained open in the state had the law gone into effect leaving over 1.3 million women of reproductive age more than 100 miles from the nearest abortion clinic.

The Fifth Circuit’s Unsound Reasoning

Prior to the Supreme Court’s decision, the Fifth Circuit had overturned most of a district court’s decision striking down this dangerous requirement. The law requires that abortion providers obtain admitting privileges at a hospital within 30 miles of the abortion clinic and the requirement that clinics providing abortion services meet the standards for ambulatory surgery centers. The Fifth Circuit also held that the requirements could be applied to the sole abortion provider in El Paso, Texas because women in that region would be able to travel to an abortion provider in Santa Teresa, New Mexico. However, the Court did enjoin the state from requiring the sole abortion provider and clinic in the Rio Grande Valley to comply with the admitting privileges requirement and two of the requirements for ambulatory surgery center.

These restrictions, often called targeted regulations of abortion providers or TRAP laws, are opposed by major medical organizations including the American College of Obstetricians and Gynecologists (ACOG) and the American Medical Association (AMA) because they “imposes[] government regulation on abortion care that jeopardizes the health of women.” As both ACOG and the AMA note, abortions are an extremely safe procedure and complications requiring hospitalization are incredibly rare. There is no medical reason to require abortion providers to have admitting privileges nor is there any reason for abortion facilities to comply with more stringent requirements than other medical facilities that perform procedures with similar, or even greater, risks.

Yet in upholding the abortion restrictions, the Fifth Circuit ignored the medical evidence, stating that the district court erred in weighing the burdens imposed by the restrictions against the medical efficacy of the restrictions. The Supreme Court has never upheld a law that limits abortion services without first establishing that the law furthers a valid state interest. In addition, both the Ninth and Seventh Circuits have held that the courts must “weigh the burdens against the state’s justification, asking whether and to what extent the challenged regulation actually advances the state’s interest.” Such an inquiry is necessary to determine whether the restrictions impose an undue burden on a woman’s constitutionally protected right to abortion. As the Supreme Court stated in City of Akron, “The existence of a compelling state interest in health . . . is only the beginning of the inquiry. The State’s regulation may be upheld only if it is reasonably designed to further that state interest.”

Texas’ Abortion Restrictions Threaten Women’s Health

Although the stay is good news for Texas women, it doesn’t undo the damage done by other abortion restrictions including provisions of HB2 that have already gone into effect. Since 2013, when HB2 was passed, more than 20 abortion clinics in the state have closed. As a result of these closures, many women seeking abortions were turned away from clinics and some of those women were unable to obtain abortions.

Other abortion restrictions in Texas, in combination with the clinic closures, have drastically impeded access to abortion care. For example, the combination of a mandatory 24-hour delay and the imposition of unnecessary and burdensome restrictions on medication abortion mean that most Texas women are required to make 4 trips to the same provider in order to obtain a medication abortion. A study of the effects of abortion restrictions in Texas found that almost a quarter of the women had a hard time getting to the clinic for a consultation visit. This burden was significantly greater for low-income women and women living more than 20 miles from an abortion clinic.

Not only do these restrictions impede women’s access to abortion but they also impose significant emotional and financial burdens. As an abortion patient in one Texas clinic stated, “It’s a guilt trip into making women keep children they don’t want, and, basically limiting access to abortion, making it really difficult for women to get abortions and have their choice.” The additional and unnecessary clinic visits and added travel to reach an abortion provider mean many women will have to take extra time off work, find a place to stay overnight and arrange for overnight childcare. These restrictions are really about one thing—making it harder or even impossible for women to exercise their constitutionally protected right to abortion.

Waiting for October

In October, the Supreme Court will decide whether it will hear the case on appeal. If it does hear the case, it could be the first time the court issues a significant ruling on what constitutes an undue burden since establishing the undue burden test in Planned Parenthood v. Casey. In the meantime, Texas’ remaining abortion clinics will remain open. Hopefully, the Supreme Court will ensure they continue to stay open.