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Roberts Court: Texas Abortion Providers Can Stay Open for Now

Andrea Grimes

HB 2 bans abortion after 20 weeks, limits the prescription of medication abortion, requires abortion-providing doctors to have admitting privileges at local hospitals, and requires facilities that provide abortion care to operate as ambulatory surgical centers.

Read more of our articles on Texas’ omnibus anti-abortion law here.

The Supreme Court declared Monday in a 5-4 decision that Texas’ legal abortion facilities will be allowed to stay open for now even if they are not operating as hospital-like ambulatory surgical centers.

The Roberts Court will consider hearing an appeal on the anti-choice legislation designed to make abortion inaccessible across most of Texas.

The decision came just two days before the most restrictive provision of HB 2, the 2013 omnibus anti-choice law passed despite a 13-hour filibuster by Sen. Wendy Davis (D-Fort Worth), was set to go into effect. The law, passed by the Republican-controlled Texas legislature, would have forced abortion providers to operate as ambulatory surgical centers (ASCs), essentially forcing many clinics to shut down.

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In addition to the ASC provision, HB 2 bans abortion after 20 weeks, limits the prescription of medication abortion, and requires abortion-providing doctors to have admitting privileges at local hospitals.

Amy Hagstrom Miller, CEO of Whole Woman’s Health, a group of comprehensive reproductive health-care clinics and one of several plaintiffs in the case against HB 2, said in a press release that she is “relieved” the court has “prevented anti-choice politicians from pushing safe and affordable abortion care entirely out of reach for Texas women.”

“We at Whole Woman’s Health know that reproductive care is not some political bargaining chip—that’s part of why we’re fighting this,” Hagstrom Miller said. “With today’s ruling, we remain hopeful that the justice system too will stand with Texas woman and Whole Woman’s Health.”

The deeply conservative Fifth Circuit Court of Appeals upheld HB 2’s ASC provision earlier this month, and the Center For Reproductive Rights, which represents Whole Woman’s and a coalition of other independent Texas-based abortion providers, petitioned the Supreme Court to hold the Fifth Circuit’s decision until the high court could ultimately rule on the case.

Monday’s Supreme Court order blocking HB 2 will “terminate automatically” if the Court does not take up Texas abortion providers’ case. If the Court does take up the case, the order will “terminate” upon the Court’s ultimate decision.

Chief Justice John Roberts, along with Justices Alito, Scalia, and Thomas, dissented from the order and would have allowed the Texas law to go into full effect pending further legal challenge.

It is the final provision of the law, dealing with ASC mandates, that could cost providers millions of dollars in changes to their facilities, operations, and staffing requirements.

Nine existing abortion facilities in Texas operate as ASCs. The mainstream medical community has declared HB 2’s ASC provisions, as well as its mandated admitting privileges, to be medically unnecessary and dangerous to Texans’ reproductive health because of the likelihood that the law will reduce access to legal abortion care by shuttering clinics.

Dozens of legal abortion facilities have already closed in the two years since GOP Gov. Rick Perry signed HB 2 into law in the summer of 2013.

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