More than 160 congressional Democrats filed a friend-of-the-court brief to the U.S. Supreme Court on Tuesday, arguing that a Texas law that effectively forces most of the state’s abortion clinics to close is unconstitutional.
The group, which included Sen. Patty Murray from Washington state and Sen. Richard Blumenthal from Connecticut, wrote in the brief (PDF) that “a woman’s right to decide whether to carry a pregnancy to term or to seek critical medical services, including abortion, should be insulated from the shifting political rhetoric and interest groups whose sole purpose is to erode the right to choose to bring a pregnancy to term afforded to women under [Roe v. Wade],” the 1973 case in which the Supreme Court ruled that women could get abortions.
The brief was filed ahead of the court’s March 2 hearing of Whole Woman’s Health v. Cole, which challenges a Texas law that requires clinics performing abortions be outfitted with hospital-like surgical centers, an expense many can’t afford. Supporters of the law say it’s meant to protect women’s health.
Another portion of the law, HB2, which was signed by Texas Gov. Rick Perry in the summer of 2013, requires abortion doctors to have admitting privileges at a local hospital — a development that shuttered about half of the state's abortion clinics. If the "ambulatory surgical center" portion stands, it will shrink the state’s abortion clinics from 41 before the law was passed to 10 or fewer, according to Al Jazeera’s calculations.
Abortion rights activists have argued that lower-income women in rural Texas who lack child care or transportation will be stuck without a way to safely end their pregnancies, and that millions of women would have to drive 100 miles or more to find a provider. Whole Woman's Health, an Austin, Texas-based organization that runs several health clinics across the country, filed a lawsuit in 2014 contesting the ambulatory surgical center portion of the law, but the Fifth Circuit Court of Appeals rejected the appeal in June 2015.
However, the Supreme Court issued an emergency stay, allowing the affected clinics to stay open as the justices considered whether to listen to an appeal to the Fifth Circuit ruling. The court decided to accept the case in November 2015, and oral arguments will be heard March 2.
This is the first abortion case heard by the Supreme Court since 2007, and experts say it will have a major effect on abortion rights across the country. Since 2010, two dozen other states have passed similar laws restricting the circumstances in which abortions can be performed (PDF).
“The law that’s being challenged in Texas is a type of restriction that has been passed in a lot of other states,” said Caitlin Borgmann, a reproductive law expert and professor at City University School of Law in New York and executive director of the American Civil Liberties Union of Montana.
For example, only one abortion clinic remains in Mississippi due to a 2012 law requiring abortion doctors to have hospital admitting privileges.
The court will have to determine just how inconvenient it is for Texas women to drive longer distances to reach an abortion clinic so as to be an “undue burden” on them, the standard outlined in 1992 when the Supreme Court struck down Pennsylvania’s law requiring women to inform their husbands before having abortions.
“It’s not completely clear what constitutes an undue burden,” Borgmann said. “That’s why some state governments have thought that they could pass these restrictions.”
Before the Supreme Court clarifies it, lawmakers and advocacy groups on both sides of the political spectrum have weighed in. The Obama administration also filed a brief to the Supreme Court urging it to strike down HB2, arguing that the restrictions would threaten, not protect, women’s health. "If HB2 were permitted to take full effect, the vast majority of the abortion clinics that operated in Texas before enactment of that law would be shut down, resulting in substantial obstacles for women seeking a previability abortion," U.S. Solicitor General Donald Verrilli wrote in the brief submitted Monday.