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From Health Law Daily, November 16, 2015

Supreme Court runs interference on Texas’ attempt to pass abortion restrictions

By Jenny Burke, J.D., M.S.

After many years of standing on the sidelines, the Supreme Court is stepping back onto the field to re-enter the debate over abortion rights. On November 13, 2015, the Court announced that it will review a challenge to a Texas law requiring physicians at abortion clinics to have admitting privileges at a nearby hospital and requiring clinics to meet the standards of an ambulatory surgical center. The court’s decision will mark its third major entry into the debate, following Roe v. Wade and Planned Parenthood v. Casey.

The controversy is over Texas House Bill (H.B.) 2, which contains two controversial provisions. It requires that abortions be performed in ambulatory surgical centers, which are facilities that specialize in outpatient surgery, and it requires that abortion providers obtain admitting privileges at a nearby hospital. Officials in Texas claim that the contested provisions are needed to protect women’s health. Abortion providers, however, responded that the regulations are expensive, unnecessary and intended to close most of the facilities in the state. The state will review the law by analyzing whether it truly does protect women’s health and whether it poses an undue burden on Texas women seeking abortions.

This is not the first time that the Supreme Court has intervened in Whole Woman’s Health v. Cole. In October 2014, the court reinstated a district court's ruling that blocked the ambulatory surgical center provisions of H.B. 2 from going into effect and triggering more clinic closures while the Fifth Circuit court considered the case. At that time, the high court also overturned the admitting privileges requirement for two Texas facilities (see Texas restrictions on abortion clinics blocked, October 15, 2014). In June 2015, after the Fifth Circuit ruled to allow the H. B. 2 provisions to go forward, the Supreme Court put an emergency stay on these requirements, to remain in effect while it decided whether to take on the case for a full review.

"The Court now has the opportunity to decide whether we will continue to allow elected officials to play politics with women's health," wrote Ilyse Hogue, the president of NARAL Pro-Choice America, in a statement. "This case represents the greatest threat to women's reproductive freedom since the Supreme Court decided Roe vs. Wade over 40 years ago. Laws like the ones being challenged in Texas are designed to subvert the Constitution and end the right to a safe and legal abortion."

"The common-sense measures Texas has put in place elevate the standard of care and protect the health of Texas women," wrote Texas Attorney General Ken Paxton, in a statement released following the Supreme Court's announcement. "We look forward to demonstrating the validity of these important health and safety requirements in Court."

The court will most likely hear arguments in the case in February or March of 2016 and release its decision in June, just four months prior to the presidential election.

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