Arguing that doctors and clinics are exaggerating the impact of a new abortion control law on women in Texas, state officials on Tuesday urged the Supreme Court to allow the state to continue enforcing that law while an appeals court reviews its constitutionality.  The brief is an answer to a challenge that was filed with Justice Antonin Scalia, and either he or the full Court can act on the dispute.

At issue is a new requirement that no abortions may be performed at any site in Texas unless the doctor providing the service has professional privileges to send patients to a hospital within thirty miles.  A federal judge in Austin blocked that requirement, but the Fifth Circuit allowed it to go into effect eight days ago, while that court studies the case.

Much of the legal argument in the state brief focused on the fact that the doctors and clinics are challenging the admitting privileges as it was written, not as it may apply in any specific factual situation, and argued that the challengers have not come close to showing that there is no circumstance in which the law could not be enforced legally.

Noting how difficult such a “facial challenge” normally is, the state contended that there are many parts of Texas where the demands of the new law can easily be met, because the clinics in those areas are close to hospitals where patients could be admitted if follow-up care were found to be necessary.

The challengers have argued that the law, in practice, will require more than a third of clinics providing abortions in the state to close, resulting in the loss of access to the procedure for as many as 20,000 women each year.   The state countered that this figure is based on assumptions about how clinics will respond to the new law, and that those assumptions have not been proven.

Noting that the law has now been in effect for eight days, the state said that the hardships the challengers forecast have not occurred, and that backlogs are not developing at the clinics that remain open.

The district court judge in Austin who earlier had blocked the privileges provision did so statewide, but state officials argued on Tuesday that he had no authority to do so.   The law includes a specific provision, the state brief said, that if the law does have the effect of intruding upon any doctor’s services, the law would be invalid only as to that doctor, and not to any others elsewhere in the state.

Finally, the brief said that the law should be allowed to continue in force because there is no basis for believing that the Supreme Court ultimately will agree to rule on the validity of the Texas law.  There is no split among the appeals courts on such a privileges provision, the brief said, and no such split can be predicted at this point.

The Fifth Circuit plans to hold a hearing on the law in January.  If the Supreme Court refuses to block the law, it thus will remain in effect at least until that lower court review is finished.

Posted in Cases in the Pipeline, Featured

Recommended Citation: Lyle Denniston, Texas defends abortion control law, SCOTUSblog (Nov. 12, 2013, 10:26 PM), http://www.scotusblog.com/2013/11/texas-defends-abortion-control-law/