Editor's note: This story has been updated throughout.
Setting up what could be a landmark decision, the U.S. Supreme Court on Friday agreed to take up a legal challenge to Texas’ 2013 abortion law, which could shut down about half of the state’s 19 remaining abortion clinics.
The high court's decision could spell out how far states can go in restricting abortion. The Texas restrictions, passed as part of House Bill 2, would require abortion facilities meet hospital-like ambulatory surgical center standards, including minimum sizes for rooms and doorways, 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.
A coalition of abortion providers has sued the state, saying the restrictions are unconstitutional. State attorneys say the measure was passed to improve the safety of abortions and to ensure women are getting the highest standard of health care.
If the Supreme Court had declined to take up the case, half of the abortion clinics in the state would have been forced to shut down overnight. That would have left Texas with about 10 abortion clinics — all in major metropolitan areas.
The court could take up the case as early as March with a decision expected next summer. The clinics will remain open until then.
"Although this is the first step in a much longer process, I am hopeful that the Supreme Court will uphold the rights that have been in place for four decades and reaffirm that every woman should be able to make her own decision about continuing or ending a pregnancy," said Amy Hagstrom Miller, president and CEO of Whole Woman’s Health, the lead plaintiff in the case.
After losing at the appellate level, the coalition of abortion providers asked the high court to weigh in. Originally, the abortion providers challenged the ambulatory surgical center provision while asking for an exemption from the admitting privileges 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.
Texas Attorney General Ken Paxton, whose office is representing the state in the lawsuit, had asked the high court to reject the providers’ request, arguing their request was too broad. The AG’s office also contends the abortion providers have not proved that HB 2 would impose an undue burden — the constitutional standard set by the high court — for the majority of women seeking the procedure.
On Friday, Paxton reiterated the state's defense that the abortion law includes "common-sense measures" intended to "elevate the standard of care and protect the health of Texas women."
"The state has wide discretion to pass laws ensuring Texas women are not subject to substandard conditions at abortion facilities," Paxton said in a statement. "The advancement of the abortion industry’s bottom line shouldn’t take precedent over women’s health, and we look forward to demonstrating the validity of these important health and safety requirements in Court.”
Attorneys for the Center for Reproductive Rights, which brought the lawsuit, argue that the abortion restrictions in HB 2 are unconstitutional because they create an undue burden for Texas women who would be left to travel more than 150 miles to the nearest abortion facility. They also claim that the HB 2 restrictions do not advance the state’s interest in promoting health.
The undue burden standard was set by the Supreme Court in 1992 when it ruled that states could impose abortion restrictions as long as they did not place an undue burden on a woman's ability to obtain an abortion. The high court’s decision in the Texas case could help clarify what constitutes an undue burden — a definition that lower courts have disagreed on since then.
A decision in the Texas case would also determine the constitutionality of restrictions in place in other areas of the country. There are currently 10 states that have passed admitting privileges requirements, but courts have blocked their enforcement in six of those states, according to the Center for Reproductive Rights. Six states have enacted hospital-like ambulatory surgical center standards on abortion facilities. Those restrictions are not in effect in two of those states.
The 2013 Texas abortion law has been tangled up in federal court for years. And the high court had twice intervened in the abortion lawsuit.
In October 2014, it temporarily put on hold the hospital-like standards, overturning an appeals court’s ruling that the provision could take effect as the case went through the appeals process. In June, the Supreme Court temporarily put the appeals court’s final ruling on hold until it decided whether to take up the Texas case.