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Will Roberts Court Take Up Case Against Nation’s Most Radical Anti-Choice Law?

Jessica Mason Pieklo

Almost three years after the passage and implementation of HB 2 the Roberts Court could finally weigh in on its constitutionality.

A coalition of women’s health-care providers, on behalf of Texas abortion providers, are urging the U.S. Supreme Court to consider the legality of the nation’s most radical set of anti-choice policies.

“This case will determine whether Texas can force more than 75 percent of the State’s abortion clinics to close,” opens the brief filed with the Roberts Court late Tuesday night.

The brief asks the Roberts Court to review a June 2015 decision from the U.S. Court of Appeals for the Fifth Circuit, which upheld portions of HB 2 that advocates say would close more than 75 percent of abortion clinics in Texas and cut off access to safe and legal abortions for millions of Texans.

“The outcome of this case is a matter of exceptional importance because the rights, health, and dignity of thousands of women are at stake,” the filing states. Texas, the second most populous state in the nation, is home to 5.4 million women of reproductive age. More than 60,000 of those women choose to have an abortion each year.

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The filing asks the Robert Court to permanently block enforcement of two provisions of HB 2, the devastating anti-choice omnibus bill passed by Texas’ Republican-majority legislature in July 2013. The first provision requires that all abortion providers obtain local hospital admitting privileges, a mandate that has already forced the closure of more than half the clinics in the state.

The second provision requires every reproductive health-care facility offering abortion services to meet the same hospital-like building standards as an ambulatory surgical center (ASC), which can amount to millions of dollars in medically unnecessary facility upgrades.

Advocates argue in their filing that if the Roberts Court fails to step in, only ten clinics will remain open in the state, down from 41 prior to HB 2’s enactment and a net reduction of more than 75 percent of the abortion facilities in the state in a two-year period. Should this happen, advocates say, “every woman in Texas would have to live under a legal regime that fails to respect her equal citizenship status and would force her to grapple with unnecessary and substantial obstacles as a condition of exercising her protected liberty.”

“By passing HB2, lawmakers forced us to permanently close our clinics in Beaumont and Austin. While our Fort Worth and McAllen clinics are currently open, they have both had to close at various points over the last two years, leading to financial strain and overall confusion—some women even questioning if abortion is still legal in the state of Texas,” Amy Hagstrom Miller, president and CEO of Whole Woman’s Health, said in a statement.

The Supreme Court has twice stepped in to block enforcement of HB 2: once in October 2014 and then again in June 2015. The only reason the Fifth Circuit was able to conclude that the admitting privileges and ASC provisions of HB 2 did not unduly abortion rights was by determining that the undue burden standard does not require, let alone permit, courts to actually examine the extent to which an abortion restriction furthers a valid state interest. This, advocates argue in their filing, “renders the undue burden standard a toothless protection for the fundamental liberty recognized in Casey,” which has facilitated the “ability of women to participate equally in the economic and social life of the Nation for more than four decades.”

It also stands in direct conflict with decisions of the Seventh and Ninth Circuit courts and the Iowa Supreme Court, which have all held that courts are required to examine the extent to which abortion regulations further a valid state interest.

Should the Roberts Court let HB 2 take effect, one of the remaining ten clinics in the state, Whole Woman’s Health of McAllen, would be limited to employing only one physician to provide abortions, even though at least four physicians were providing abortions there prior to implementation of HB 2. That doctor is past retirement age and unable to work there full time, which means the McAllen clinic would be limited to treating patients who reside in the four counties of the Lower Rio Grande Valley.

The next closest abortion provider for patients would be in San Antonio, a drive of more than 200 miles.

Texas’ remaining abortion providers would be clustered in four metropolitan areas: Dallas-Fort Worth, Austin, San Antonio, and Houston. Texas would have no licensed abortion facilities west of San Antonio. This is a region that occupies more than a 100,000 square miles.

“It’s been a long and arduous road to get to today’s filing, but that’s nothing compared to the obstacles that Texas women seeking reproductive health services will face if the Supreme Court of the United States denies our request and allows HB2 to fully go into effect,” Hagstrom Miller said. “Our ability to get safe medical care should not depend on whether we have the resources necessary to navigate a horrific and complex obstacle course [dreamed] up by anti-choice lawmakers. This is the real world and these laws have real implications on real women’s lives.”

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