Texas attorney general Ken Paxton on Monday asked the U.S. Supreme Court to turn away a legal challenge to the state's abortion restrictions filed by a coalition of abortion providers.
The abortion providers appealed to the high court almost a month ago, and justices have not yet decided whether to hear the case. In Monday's filing, the state's attorneys argued that a lower court was right in rejecting the challenge to abortion restrictions passed by the Texas Legislature in 2013, known as House Bill 2. They also said that the abortion providers’ request was too broad and cited a lack of evidence proving the restrictions unconstitutional.
The HB 2 rules will require some abortion facilities to retrofit their clinics to meet the same standards as ambulatory surgical centers, from minimum room sizes to pipelines for anesthesia and other modifications. A separate provision, which has already gone into effect, requires doctors who perform the procedure to have admitting privileges at a hospital within 30 miles of an abortion clinic.
Originally, the abortion providers challenged the ambulatory surgical center provision and asked for exemptions from the admitting privileges requirement for two clinics: Whole Woman’s Health in McAllen and Reproductive Services in El Paso. But the providers are now asking the Supreme Court to permanently block enforcement of both provisions.
In the AG’s brief filed with the high court, state attorneys argued that the abortion providers could not challenge the admitting privileges requirement beyond the exemptions for the two clinics on the border, because that provision of HB 2 has already been upheld by the courts in a separate lawsuit.
“[The abortion providers] wish to proceed as if their first lawsuit against HB 2 never happened,” the state attorneys wrote. “But they litigated that case to a final judgment, and arguments and evidence they chose not to present there are barred.”
Attorneys for the Center for Reproductive Rights, which brought the lawsuit, have argued that the abortion restrictions in HB 2 are unconstitutional, creating an undue burden for Texas women who would have to travel more than 150 miles to the nearest abortion facility. The handful of abortion facilities in Texas that currently meet the hospital-like standards are in major cities.
The abortion providers’ attorneys also argued that the HB 2 restrictions do not advance the state's interest in promoting health.
In its brief, Paxton's office argued that the abortion providers have been unable to prove that HB 2 would impose an undue burden for the majority of women seeking the procedure — an argument the U.S. 5th Circuit Court of Appeals echoed in its June ruling.
The state attorneys contend the Legislature passed the restrictions to increase the safety of abortions and ensure that women receive “the highest standard of health care.” They added that the high court was not required to “judge for itself the medical effectiveness” of the restrictions and balance that again the “burdens purportedly caused by HB 2.”
“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,” the state’s brief reads.
The abortion providers asked the high court to take up their case in September after losing at the appellate level. A three-judge panel of the 5th Circuit in June upheld most of the state's abortion law,
The appellate court carved out an exception from most of the hospital-like standards for the Whole Woman’s Health clinic in McAllen and granted one of the McAllen clinic’s doctors relief from the admitting privileges requirement. But it denied a request from abortion providers to delay the ruling’s implementation while the providers appealed to the high court.
That’s when the Supreme Court intervened in the case, voting 5-4 to put the 5th Circuit’s ruling on hold.
Paxton’s filing comes on the first day of the court’s new term. The justices must still decide whether to take up the case. If the court rejects the case, the 5th Circuit’s ruling would stand.