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From Health Law Daily, March 3, 2016

Texas abortion law scrutinized by High Court

By Bryant Storm, J.D.

A case that could impact where and under what circumstances providers may perform abortion services was argued before the Supreme Court on March 2, 2016. The case—Whole Woman’s Health v. Hellerstedt—asks the court to decide how far states can reach when regulating abortion providers before the restrictions unduly burden a constitutional right.

Texas law. The case challenges two Texas laws: one that requires abortion clinics to meet the more stringent standards that apply to ambulatory surgical centers (ASCs) and a second that requires abortion doctors to obtain admitting privileges at a local hospital before they can perform abortions. While the state asserts that the provisions are designed with patient safety in mind, opponents of the law argue that the regulations are designed by antiabortion lawmakers to do little other than restrict access to abortions. Intent aside, since aspects of the law at issue went into effect, the number of Texas abortion clinics fell from 40 to 19.

The history of H.B. 2. The Supreme Court previously intervened to interrupt the law, House Bill 2 (H.B. 2), by removing the admitting privileges as they applied to two clinics and reinstating a district court's ruling that blocked the ASC provisions (see Texas restrictions on abortion clinics blocked, October 15, 2014). Subsequently, after the Fifth Circuit ruled to allow H.B. 2 to go forward, the Supreme Court put an emergency stay on the requirements pending its decision to take on the case for full review (see Supreme Court runs interference on Texas’ attempt to pass abortion restrictions, November 16, 2015).

Benefit. During the oral arguments, Justice Breyer asked the lawyer for the state of Texas about the relative benefit of the admitting privilege requirement as compared to the hospital transfer agreements that were in use prior to the law. The attorney for the state of Texas replied that there was no evidence in the record regarding instances of risk or harm stemming from the absence of admitting privileges prior to the time that they were required. Justices Ginsburg and Sotomayor asked what benefit the ASC requirement was intended to give when other, more risky procedures—dental procedures, liposuction, colonoscopies—could be performed lawfully in Texas outside of an ASC. The attorney for the abortion clinics noted that if “Texas truly believed the laws provided some important benefit for outpatient surgery, it would have made them generally applicable.”

Capacity. The questioning repeatedly turned to the issue of whether the Texas law was, in fact, responsible for the closing of the abortion clinics. Additionally, the justices inquired as to the capacity of remaining abortion clinics and their ability to absorb the patients left by the closed clinics. Counsel for the abortion clinics suggested that the remaining clinics did not have the necessary capacity. Justice Kennedy’s questions hinted that one outcome for the case could be a remand to the lower courts to allow an investigation into the capacity issue.

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