Paxton: Women not burdened by law
State’s strict abortion law should stand, he tells U.S. Supreme Court.
Lawyers for Texas urged the U.S. Supreme Court to let the state’s strict abortion regulations stand, arguing in a brief fifiled Monday that the rules doe not impose an unconstitutional burden on women even though they are expected to close most of the state’s abortion clinics.
“Effects alone cannot prove unconstitutional motive,” Attorney General Ken Paxton told the court.
The 2013 Texas law known as House Bill 2 could provide the high court with an avenue to address a difficult-to-define standard, in place since 1992, that says regulations cannot place an “undue burden” on access to abortions or place a substantial obstacle in the path of a woman seeking an abortion.
As a growing number of states enact stricter regulations on the practice of abortion, legal scholars across the nation are watching the case
to see if the court will review HB 2’s provisions, potentially providing further guidance on what constitutes an undue burden.
The court’s decision on whether to accept the case is not expected for several weeks.
Abortion providers have asked the Supreme Court to overturn two HB 2 regulations — a requirement that abortion doctors gain admitting privileges in a nearby hospital, and a rule that abortions can only be performed in surgical centers.
More than 40 abortion clinics operated in Texas before the law was passed. More than half closed after the admitting privileges requirement went into effect in November 2014. If the surgical center rule is allowed, only 10 or 11 clinics would remain to serve the nation’s second largest state, the providers said.
“The failure to find that the abrupt closure of more than 75 percent of Texas abortion clinics would create substantial obstacles to abortion access makes a mockery of the (undue burden) standard,” the providers told the court.
The regulations also burden women by placing their health at increased risk, the clinics argued. Many rural Texas women, required to drive more than 150 miles to the nearest clinic, would be forced to delay abortions, placing them at increased risk of complications, “and some would be unable to access such services at all,” the providers said.
Paxton disputed the claims, arguing that the new standards were meant to provide women with better medical care.
“States are given wide discretion to pass medical regulations,” Paxton argued, adding that the clinics are asking the court to judge for itself the medical effectiveness of HB 2’s regulations.
“In short, petitioners would have this court serve as the country’s ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States — a role this court has specifically declined to assume,” Paxton wrote.
In addition, he said, the vast majority of Texans would not be substantially burdened because they live within 150 miles of surgical center abortion clinics already operating in Austin, Dallas, Fort Worth, Houston and San Antonio.
Lawyers for the abortion providers will have two weeks to submit a response brief, after which the case will be scheduled to be discussed by the court’s nine justices at a private conference, when they will decide whether to accept or reject the appeal.
If the abortion providers’ appeal is rejected, the surgical center rules will immediately go into effect.
Abortion providers have filed two lawsuits to overturn sections of HB 2.
The state prevailed on the first challenge in 2013 when the 5th U.S. Circuit Court of Appeals upheld the admitting privileges provision, overturning U.S. District Judge Lee Yeakel of Austin, who had ruled that the requirement improperly limited access to abortion while providing no discernible health or safety benefits for patients.
The Supreme Court declined to review the 5th Circuit’s ruling.
A second lawsuit attacked the surgical center provision, which was scheduled to go into effect in September 2014.
Yeakel also ruled in the clinics’ favor in that lawsuit, saying the surgical center requirement — particularly in combination with the admitting privileges rule — was designed to close abortion clinics, not improve health care.
The 5th Circuit again overturned Yeakel’s decision, leading to the current showdown before the Supreme Court.