UPDATE, October 7, 10:30 a.m.: Tuesday morning, CRR told Rewire that the Supreme Court has asked the State of Texas to respond to their petition by Thursday at noon.
After all but eight of Texas’ legal abortion facilities closed their doors or ceased providing abortion care over the weekend, the ongoing federal challenge to Texas’ omnibus anti-abortion law made its way to the nation’s highest court on Monday evening, with abortion providers asking Justice Antonin Scalia to put an appeals court decision on hold while their case makes its way through the judicial system.
“Women’s constitutional rights and access to safe, legal abortion care have been dealt a devastating blow,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a press release. The center is representing Texas abortion providers in this and one other challenge to the state’s new abortion law.
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The majority of Texas’ 20 or so remaining legal abortion providers were forced to shutter or stop offering abortion care this weekend following a Fifth Circuit Court of Appeals ruling that overturned an earlier federal district court injunction against the law, allowing the state to begin fully enforcing HB 2, which anti-choice Texas legislators passed last summer despite weeks of public protest at the capitol building in Austin.
Northup continued: “We look now to the U.S. Supreme Court to immediately reinstate the injunction, allow the clinics to reopen, and put an end to the irreparable and unjustifiable harm to Texas women that is happening right now.”
The recent clinic closures mean that nearly a million Texans who might need abortion care now live more than 150 miles from the closest legal abortion facility.
The Fifth Circuit Court in New Orleans ruled that HB 2 did not constitute an “undue burden” for abortion-seeking Texans, overruling a district court decision made by Judge Lee Yeakel, who said in September that HB 2 “creates a brutally effective system of abortion regulation that reduces access to abortion clinics thereby creating a statewide burden for substantial numbers of Texas women.”
HB 2, which also restricts the prescription of medication abortion and bans abortion after 20 weeks, requires abortion providers to operate as ambulatory surgical centers and requires abortion-providing doctors to have admitting privileges at local hospitals.
These last two provisions are currently being challenged in the federal suit in question.
In its application asking the Supreme Court to vacate the Fifth Circuit’s stay on the lower district court’s ruling, the Center for Reproductive Rights called the Fifth Circuit ruling “demonstrably wrong,” arguing that the court incorrectly interpreted past legal precedent and dismissed biased testimony from witnesses brought by the Texas attorney general’s office, which has defended the law in court:
Although the asserted rationale for the challenged requirements is the protection of women’s health, the evidence presented at trial demonstrated that neither the ASC requirement nor the admitting-privileges requirement provides a health benefit to abortion patients, and in fact, the requirements will result in a net harm to women seeking abortions.
The abortion providers’ application is addressed directly to Judge Scalia, who oversees the Fifth Circuit. Scalia may now choose to rule on the application alone, or he may direct the decision to the full court.