Abortion clinics throughout Texas have formally filed a request for the U.S. Supreme Court to take their case, setting the stage for a legal showdown with national impact, over how much states can restrict the constitutionally-protected right of a woman to end her pregnancy.
"This case will determine whether Texas can force more than 75% of the State’s abortion clinics to close by enforcing a pair of statutory requirements that serve no valid state interest," write the clinics in their petition to the court in Whole Woman's Health v. Cole, filed Thursday. They also pointed out that appeals courts are split on the issue, traditional grounds for the Supreme Court to step in.
The law in question requires abortion providers to have admitting privileges at local hospitals and for clinics to conform to hospital-level standards, which the majority of medical experts say is not necessary. In practice, particularly in the states where local hospitals are hostile to abortion, such laws would or have already shut down the clinics. In Texas, for example, the admitting privileges provision has effectively halved the number of clinics, currently at 18, and in Mississippi, which has also asked the court to hear its case, the admitting privileges requirement would close the last clinic in the state.
Related: The GOP’s war on abortion
Both the American Medical Association and the American College of Obstetricians and Gynecologists oppose such restrictions, saying they would leave women less safe by closing down clinics. The state of Texas's "own data shows that, in Texas, the risk of death from carrying a pregnancy to term is 100 times greater than the risk of death from having an abortion," the clinics point out in their petition.
The Supreme Court has already temporarily blocked the Texas provision that all abortions happen in ambulatory surgical centers, which would leave only 10 clinics in major metropolitan areas.
The court is currently in recess, and its first conference, when the justices meet to discuss whether to take up a case, is scheduled for October 9. The justices have already discussed several times a challenge to Mississippi's similar admitting privilege requirement for abortion providers without announcing whether they will take it up, and they may have been waiting to receive a formal petition from the Texas clinics.
In late June, shortly before leaving for its recess, the court granted an emergency request from the Texas clinics to block a 5th Circuit Court of Appeals decision that would have allowed most of the law to take effect, closing down roughly 8 clinics. But that four-sentence order said the temporary reprieve would immediately be lifted if the court refused to take up the Texas case. It takes four votes from Supreme Court justices to agree to hear a case.
The court has not taken up a major abortion case since 2007, when it narrowly upheld the federal Partial-Birth Abortion Ban in sharp contrast to its own precedent. That opinion was written by Justice Anthony Kennedy, the swing vote on this and other issues. Abortion-rights advocates have been wary of returning to the court for help since. But the hundreds of restrictions on the procedure passed in state legislatures has forced their hand, since access may be decimated in the vast swaths of the country, mostly in the south, that have passed laws similar to Texas's.
For decades, opponents to abortion rights have sought to undo Roe v. Wade -- the 1973 decision that said a woman has a constitutional right to terminate a pregnancy -- not all at once, but by chipping away at the right, one seemingly benign restriction at a time. But in 1992, in Planned Parenthood v. Casey, Kennedy joined other moderate justices in seeking a middle ground: States can restrict abortion, even try to talk a woman out of her decision, but they cannot create an "undue burden" on a woman's decision. Now, the justices will have to decide what that means in practice. Is forcing a woman to travel hundreds of additional miles an undue burden? Can the state create any kind of hurdle at all if it justifies it as "furthering women's health"?
A three-judge panel on the Fifth Circuit Court of Appeals all but dared the Supreme Court to step in when it said that judges should take at face value the state's claims that their restrictions on abortion further a woman's health. The clinics write in their petition to the court today, "The Fifth Circuit’s ruling rests on its determination that the undue burden standard does not require—or even permit—inquiry into the extent to which an abortion restriction furthers a valid state interest. It stands in direct conflict with decisions of the Seventh and Ninth Circuits and the Iowa Supreme Court, which hold that courts must examine the extent to which laws regulating abortion actually further a valid state interest in assessing whether the burdens they impose on abortion access are undue."
Unless the court steps in, the clinics argue, the court's undue burden standard would be "a hollow protection."
In a call with reporters Thursday, Nancy Northup, president of the Center for Reproductive Rights, which is representing the clinics, said, "Although we have by and large been winning these cases, women shouldn’t have to go to court again and again. The court needs to clarify and reaffirm that its decision in Planned Parenthood v. Casey has real teeth.”
Amy Hagstrom Miller, owner of Whole Woman's Health, the lead plaintiff in the case, said, referring to the hundreds of miles women in Texas would have to travel if the law were enforced, "I think we have to ask: Do we want the rest of the country to look like Texas?"