The waiting game of Supreme Court decision days is upon us, and with it, the question of how eight justices will resolve the most important abortion case to reach the court in decades.
Amy Hagstrom Miller is watching with more anxiety than most. As the founder and CEO of Whole Woman’s Health, the network of abortion clinics that brought the challenge to Texas’ restrictions, she waits for the court to tell her whether she will have to close even more of her clinics in the state.
“It's consumed us,” Hagstrom Miller told MSNBC. “The reason I went into the field in the first place is to provide holistic abortion care where women don't feel stigma and shame. And now I'm in this position of telling women, ‘We can't see you.’ I'm the enforcer of the very laws I disagree with.”
Hagstrom Miller isn't sure if effectively losing the case would mean shutting down a pivotal clinic she runs in McAllen, near the Mexican border, in the medically under-served Rio Grande Valley. She says the 5th Circuit Court of Appeals, which ruled that most of the law could go into effect, laid out such a confusing set of standards that “I don't know that I could keep it open under those conditions.”
The difference is whether Texas would be left with nine or ten abortion clinics, and for some women, additional hundreds of miles of travel.
In the year before the law was passed, Texas had more than 40 abortion clinics, about half of which closed when the first part of the law went into effect. Known in Texas as HB2, it passed over the famous filibuster by Wendy Davis. Currently, Whole Woman’s Health is challenging the requirements that abortion providers have admitting privileges at local hospitals, and that earlier abortions take place in cavernous and expensive mini-hospitals known as ambulatory surgical centers. The second requirement going to effect would halve the number of clinics again.
Texas says the intent is to improve women’s health outcomes. Whole Woman’s Health, as well as major medical groups like the American Medical Association and the American College of Obstetricians and Gynecologists, say the law has no basis in medical necessity and could make women even less safe by delaying their abortions.
At oral argument in March, Justice Stephen Breyer asked Texas’s solicitor general, Scott Keller, where he could find cases in which the law would have prevented harm to abortion patients.
“Which were the women?” Breyer asked. “On what page does it tell me their names, what the complications were, and why that happened?”
Keller had to reply, “Justice Breyer, that is not in the record.”
A key legal question before the court is whether Texas even has to show that there is evidence behind its law, or whether a lighter “rational basis” standard can now suffice.
Shorthanded due to the death of Justice Antonin Scalia and the refusal of Senate Republicans to even hear the nomination of Merrick Garland, President Barack Obama’s pick, the justices have a few options. They can rule (resoundingly or tepidly) against Texas’ law, should Justice Anthony Kennedy join the four liberal justices who made their opposition clear at oral argument.
They can deadlock in a 4-4 tie, which would end the temporary hold the court put on the 5th Circuit’s decision and close down all but nine or ten of Texas’ abortion providers.
Or they could punt for further proceedings — say, more evidence ‑- which would leave significant uncertainty, but possibly buy Hagstrom Miller and other abortion providers more time to make their case.
Even a win would not guarantee the dozens of clinics that have already closed for lack of doctors with admitting privileges could reopen. Hagstrom Miller ticks off the logistical hurdles: Lapsed leases and licenses, staff that have been laid off or redirected, physicians who have found other work, getting all the medical equipment in place.
In a move that seemed designed to undercut arguments that the law posed an unconstitutional "undue burden" on the women of the Rio Grande Valley, the 5th Circuit carved out a narrow exception for the law when it came to Hagstrom Miller's clinic in McAllen, and a separate one in El Paso.
"The closure of the Corpus Christi clinic means that all women in the Rio Grande Valley will have to travel approximately 235 miles to San Antonio, or farther, to obtain an abortion," the three-judge panel wrote, and noted that Hagstrom Miller and a health advocate working in the Rio Grande Valley said "the clinic saw an increase in self-attempted abortion, and some women indicated they would be unable to make the trip from McAllen to San Antonio or Houston to obtain an abortion." In McAllen, four doctors who attempted to get privileges at local hospitals were denied an application.
But there were caveats in the appeals court decision that undermined the possibility of the McAllen clinic actually staying open: that the exemption applied to only one doctor, who is 75 years old and lives in Houston; that some but not other requirements of ambulatory surgical centers would apply, without saying which ones; and that it only applied to women in the four counties of the Rio Grande Valley.
"How can we turn people away because they don't live in the four counties?" said Hagstrom Miller. "They could live in Mexico or in Laredo or Corpus Christi."
Whole Women's Health also runs clinics in blue states like Illinois, New Mexico, and Minnesota, the expansion being fueled in part by retiring clinic owners who offer their practices to the group. "I sort of operate clinics in two different Americas," Hagstrom Miller says. A Supreme Court ruling that makes it easier for states to impose restrictions on clinics like Hagstrom Miller's could heighten that contrast.
But she won't give up the fight in Texas. "I feel like my work isn't done," she said, "until women can count on having an abortion in their community with the dignity and respect they deserve."