UPDATED Friday 3:50 p.m.  The case has now been filed and docketed, at 15-274.

———-

Facing the prospect that Texas could soon have only ten sites throughout the state where women may seek abortions — a reduction from more than forty two years ago, a group of clinics and doctors has asked the Supreme Court to overturn two key parts of a 2013 law adding new restrictions on the procedure.  The petition (found here) is being filed by mail, so it has not yet been docketed.

In late June, the Supreme Court blocked the two new provisions, but that order will expire if the Justices do not grant full review of the case in the coming new Term.  A decision in June by the U.S. Court of Appeals for the Fifth Circuit to uphold most of the law is now on hold until the Justices complete work on the case.

One of the law’s mandates is that any doctor performing abortions must have the privilege of admitting patients to a hospital within thirty miles of the clinic; the other requires all abortion clinics to upgrade their facilities to equal those of a surgical center.  A federal trial judge had struck down both, finding that they were not needed to protect the health of women in the state — a finding that the Fifth Circuit said courts were not allowed to make.

“This case,” the new petition argued, “will determine whether Texas can force more than 75 percent of the state’s abortion clinics to close by enforcing a pair of statutory requirements that serve no valid state interest.”

The only clinics in the state that would be able to satisfy both provisions, the filing said, would be concentrated in the state’s four major urban centers, leaving women who live in a vast section of the remainder of the state without a feasible way to obtain a legal and safe way to end pregnancies.

Before the law was passed in July 2013, there were more than forty clinics in the state providing abortions.  With other provisions of the law already in effect, that number has dropped to eighteen, the petition noted, and would drop to no more than ten if the final two provisions go into effect.

The challengers are focusing on the two sections of the law because those were upheld by the Fifth Circuit based upon its interpretation of the constitutional test that the Supreme Court created for abortion restrictions in the 1992 case of Planned Parenthood of Southeastern Pennsylvania v. Casey.  An abortion limitation will fail the test if it imposes an “undue burden” on a woman’s right to seek an abortion.

That test replaced the prior three-trimester framework defining abortion rights that the Court established in the original case, Roe v.Wade, in 1973.   The Court has said that the “undue burden” test is a better standard, and will largely protect a right to abortion up to the point where a fetus is capable of living if delivered — a point known as fetal “viability,” which doctors say occurs sometime around the twenty-eighth week, but may be earlier in some cases.

The Fifth Circuit ruling in the Texas case, the new petition argued, applied the “undue burden” test in a way that conflicts with decisions of other federal and state courts.   The Fifth Circuit declared that, if a state legislature passes a law with the aim of protecting women’s health, a court may not test whether it will actually do so, to determine whether it will impose an “undue burden” on abortion rights.

Other courts, and prior Supreme Court rulings, the clinics and doctors contended, require an inquiry into the actual potential impact on health to determine if it will serve a state’s interest in women’s health.

The petition thus is asking the Justices to decide whether a court in applying the “undue burden” standard must explicitly judge whether women’s health will be promoted, and whether this Fifth Circuit’s alternative approach is invalid because of the result that a major portion of the state’s available abortion facilities will have to shut down.

In addition, the petition raises a separate question that arises out of the way the Fifth Circuit analyzed whether the clinics and doctors had forfeited their right to challenge the two new restrictions as they were written, and thus to invalidate them all across the state regardless of the practical impact on women’s access to particular clinics in specific areas.

That “facial challenge,” the Fifth Circuit found, had been decided against the clinics and doctors in an earlier stage of the court fight over the Texas law, so they could not pursue it anew in a later, and final, stage.  The Fifth Circuit did rule that the challengers could make an “as applied” challenge to the two limitations — that is, a challenge based upon a claim of how the restrictions will actually work from clinic to clinic — because new state implementing rules had been issued after the prior ruling.

Although that question focuses on the procedural unfolding of the Texas case, the petition argued that it may have much wider impact, and would have the real-world effect of requiring those who want to challenge a new state law to bring all of their claims in a single proceeding, even before they know how it may operate in fact if put into effect.

Texas will have the opportunity to reply to the petition, and is certain to do so, as its lawyers have been vigorously defending the 2013 law.  The Court will not act on the petition for some weeks, at the earliest.

Already pending at the Court is an appeal by Mississippi state officials (Currier v. Jackson Women’s Health) seeking review of a similar hospital admitting privileges law for doctors performing abortions in that state.  That law is now on hold.

The Justices were scheduled to examine the Mississippi petition at seven of their Conferences during the past Term, but took no action on it before recessing for the summer.

 

 

 

 

 

 

Posted in Featured, Cases in the Pipeline

Recommended Citation: Lyle Denniston, Texas clinics challenge abortion limits (UPDATED), SCOTUSblog (Sep. 3, 2015, 6:07 PM), https://www.scotusblog.com/2015/09/texas-clinics-challenge-abortion-limits/