This will be the high court’s first abortion case in nine years.
Since 1992, the court has ruled on three abortion cases, each time affirming further abortion restrictions. In 1992, in Planned Parenthood v. Casey, a divided court upheld the right to abortion, but left it to the states to set abortion restrictions, saying that these regulations can’t put an “undue burden” on abortion access. This broad ruling opened the door for the hundreds of so-called Targeted Regulation of Abortion Providers or TRAP laws that states have passed in recent years—onerous regulations placed on abortion providers, often purporting to protect women’s health. In its last ruling in 2007, the court upheld a law outlawing dilation-and-extraction second-trimester abortions. If the court continues its pattern of voting against abortion rights and rules to allow Texas to move forward with several burdensome abortion restrictions, it will open the door for other states to do the same, dealing a serious blow to the right to legal abortion guaranteed by Roe v. Wade.
“The Court now has the opportunity to decide whether we will continue to allow elected officials to play politics with women’s health,” wrote Ilyse Hogue, the president of NARAL Pro-Choice America, in a statement. “This case represents the greatest threat to women’s reproductive freedom since the Supreme Court decided Roe vs. Wade over 40 years ago. Laws like the ones being challenged in Texas are designed to subvert the Constitution and end the right to a safe and legal abortion.”
In this case, the justices are expected to focus on two of the Texas law’s most onerous requirements: that abortions be performed in ambulatory surgical centers, hospital-like facilities that specialize in outpatient surgery, and the requirement that abortion providers obtain admitting privileges at a nearby hospital. Many medical professionals argue that these restrictions put unnecessary burdens on abortion providers: Building and maintaining an ASC is expensive, given the strict requirements regarding features like hallway width and ventilation. Nor do ASCs enhance the standard of care for abortion; the American College of Obstetricians and Gynecologists and other medical groups have repeatedly noted that the procedure can be safely performed in a typical doctor’s office. The admitting privileges’ provision gives hospitals in conservative communities or with a religious affiliation the power to effectively stop abortions by denying the necessary admission privileges to doctors.
“The common-sense measures Texas has put in place elevate the standard of care and protect the health of Texas women,” wrote Texas Attorney General Ken Paxton in a statement released following Friday’s Supreme Court’s announcement. “We look forward to demonstrating the validity of these important health and safety requirements in Court.”
The number of abortion clinics in Texas has already been cut by more than half, as elements of HB 2, such as restrictions on medication abortion, a 20 week abortion ban, and the admitting privileges requirement, have gone into effect over the last two years. Before the law, there were 41 clinics in Texas. Today, there are 18. As my colleague Molly Redden reported in September, this has created large swathes of the state where women must travel hundreds of miles to get abortion care. If the Supreme Court upholds HB2 in full, including the ambulatory surgical center requirement, the number of abortion clinics in Texas could fall to ten.