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New test of abortion rights in Texas (UPDATED)

UPDATED 12:53 p.m.  This post has been expanded to provide more details of the application.


With all but seven clinics in Texas that provide abortions now shut down, women’s rights groups asked the Supreme Court on Tuesday to clear the way for reopening about a dozen of those.  The application (Whole Women’s Health v. Lakey, docket 14A365) was filed with Justice Antonin Scalia.  He called for a response from state officials by noon on Thursday.

The challenge is to a ruling last week by the U.S. Court of Appeals for the Fifth Circuit, allowing continued enforcement of provisions of a new Texas law that require abortion clinics to upgrade to the capacity of a hospital-like surgery center and require abortion doctors to have patient-admitting privileges at a nearby hospital.

The abortion providers and their lawyers told the Court that, if the Fifth Circuit ruling is not stayed while an appeal to the Supreme Court goes forward, “the clinics forced to remain closed during the appeals process will likely never reopen.”

Moreover, the filing contended, women’s health will be put in jeopardy.  “Texas has already seen a surge in illegal abortions in areas where legal abortion services are no longer available, and that trend will continue if the [Fifth Circuit’s order] remains in place.”

Before the Texas legislature passed the measure imposing the two restrictions now at issue in the plea to the Supreme Court, there were forty-one clinics in the state providing abortions.  Now, after the Fifth Circuit’s ruling, “there are just seven, clustered in the four largest metropolitan areas in the eastern part of the state.  There are no longer any licensed facilities providing abortions south or west of San Antonio, an area larger than most states.”

If the two new restrictions are limited, during an appeal to the Supreme Court, the application said, about a dozen clinics could reopen in the area where there now are no clinics performing abortions.  If those clinics cannot reopen, women seeking abortions will have to travel hundreds of miles to find a clinic that can meet the new requirements and thus remains open, the filing said.

The application was submitted to Justice Antonin Scalia, who handles emergency matters from the geographic area that is the federal courts’ Fifth Circuit   He has the authority to act on his own, or to share the request with his colleagues.

Recommended Citation: Lyle Denniston, New test of abortion rights in Texas (UPDATED), SCOTUSblog (Oct. 7, 2014, 9:41 AM),