In a “friend of the court” brief, the Obama administration is urging the Supreme Court to reject a Texas law whose provisions have already shut down half the state’s abortion clinics and could shut down half the rest if upheld. If the court rules in favor of the law, it would be the most important ruling on abortion in two decades and have an immense detrimental impact on the availability of the procedure not just in Texas but also throughout the nation.
Expert observers expect a 5-4 decision, with Justice Anthony Kennedy being the determiner of which way that ruling goes.
The amicus brief was one of 45 submitted on the subject to the court Monday by advocacy groups, religious leaders, government agencies and others. The court is scheduled for oral arguments March 2.
U.S. Solicitor General Donald Verrilli, Jr. wrote in the government’s brief that restrictions in the 2013 law—H.B. 2 —“do not serve—in fact, they disserve—the government’s interest in protecting women’s health, and they would close most of the clinics in Texas, leaving many women in that State with a constitutional right that ‘exists in theory but not in fact.’”
Texas officials have claimed women’s health justifies the restrictions in H.B. 2. But Verrilli noted that there is no Texas law mandating similar restrictions for other outpatient procedures—‘such as colonoscopy, which has a much higher rate of complications than abortion does.”
The case in question is Whole Woman’s Health v. Cole. A three-judge panel of the Fifth Circuit Court of Appeals ruled that H.B. 2 is sound. It mandates all Texas abortion clinics to meet standards for “ambulatory surgical centers,” including regulations concerning buildings, equipment and staffing. In addition, it requires doctors who perform abortions to have admitting privileges at a hospital within a 30-mile radius of their clinic.
Ten states have enacted the admitting privileges provision, but the courts have blocked implementation in six of them. Six states have enacted the ambulatory-care standards. The courts have blocked implementation in two of them.