AUSTIN – Texas House Bill 2, which was enacted in 2013 and
deals with the safety and availability of abortion clinics in the state,
returned to the spotlight earlier this year with arguments made by the Texas
Attorney General’s Office before the U.S. Supreme Court in March in defense of
a lawsuit directly tied to the provisions of the law.
The law, which Texas Attorney General Kenneth Paxton says is
intended to improve patient safety and raise the standard of care for women at
abortion facilities, has garnered opposition from pro-choice and women’s rights
groups and individuals, who view the impact of parts of the bill differently
than the state’s chief attorney.
The Center for Reproductive Rights, the litigator for Whole Woman’s Health v.
Hellerstedt, said in a release that thousands gathered in front of the
Supreme Court to support women’s access to safe and legal abortion services.
In addition, 45 amicus briefs were filed with the Supreme
Court in January. In those briefs, several organizations and individuals,
including medical experts, social scientists, legal experts, federal/state and
local governmental entities and officeholders, military officers, religious
leaders, ethicists and reproductive rights and other civil rights advocates spoke
out in support of Whole Woman’s Health and other Texas providers.
Whole Woman’s Health filed the lawsuit based on Texas HB 2 in
2015. The law was defended before the Supreme Court in connection with the suit.
Hellerstedt is the commissioner of the Texas Department of State Health
Services. The plaintiffs petitioned for the case to be heard by the Supreme
Court after the Fifth Circuit Court upheld HB 2.
“One thing was clear from the questions the justices asked (at
the oral arguments hearing): that the facts are on the side of Whole Woman’s
Health and the women of Texas,” Center for Reproductive Rights president and
chief executive officer Nancy Northrup told the Southeast Texas Record. “There is no
justification for this law, even the American Medical Association and other
leading medical providers have said that you cannot justify this for women’s
Paxton defended the law after the Supreme Court arguments.
our law is upheld, women in Texas will be safer,” he said.
According to the Texas Solicitor General’s brief to the
Supreme Court, the circuit court noted that “an abortion clinic will remain
open in each area where one will close, meaning that over 90 percent of Texas
women of reproductive age will live within 150 miles of an open abortion
The circuit court said the Whole Woman’s Health did not prove that the
Texas clinics would lack capacity to meet the demand for abortions in the
“Petitioners did not even attempt to offer evidence
regarding the capacity of remaining abortion clinics to meet the demand for
abortion,” Keller said in the brief. “Their belated capacity argument, relying
on a study released online long after trial, is a manifestly improper ploy to
fill critical gaps in their trial evidence. In any event, that study does not
show a lack of capacity and cannot establish a statewide substantial obstacle.”
However, Center for Reproductive Rights counsel Stephanie
Toti told the high court as lead counsel on the Whole Woman’s Health action that
“the Texas requirements undermine the careful balance struck…between states’
legitimate interests in regulating abortion and women's fundamental liberty to
make personal decisions about their pregnancies.”
“They are unnecessary health regulations that create substantial
obstacles to abortion access,” Toti argued.
Toti added that new evidence should be considered by the
“The evidence is the clinic closures that resulted from
enforcement – actual enforcement of the admitting privileges requirement,” she
said. Toti said the court originally concluded that there was not enough
evidence proving that any doctor would be unable to obtain clinic admitting privileges,
or that any clinic would actually close as a result of the law.
Toti argued that “there may have been a one-to-two clinic
variance” in clinic closures before HB2 was passed, but that more than 20
clinics closed soon after the bill became law.
Paxton stressed the importance of the court upholding the
entire law. “If any part is struck down, women in Texas will be less safe, and
that would be a tragedy,” Paxton said.
The Texas legislature passed the law two months after Dr. Kermit Gosnell was convicted of killing one woman and at least three infants
in his Philadelphia clinic. The grand jury that indicted Gosnell called on
state legislatures to pass regulations to ensure such a thing doesn’t happen
again, including ensuring clinics meet the minimum standards of ambulatory
The attorney general’s office said Texas lawmakers joined
other states in adding measures to enhance safety standards in abortion
facilities, including setting admitting privileges to improve continuity of
care for patients, ensure physician competence, prevent doctor miscommunication
and prevent patient abandonment and requiring minimum surgical standards to
ensure emergency access, safety measures, a sterile and sanitary environment and
“Whole Woman’s Health
v. Hellerstedt, isn’t about one clinic or even one state; it is about every
single one of us,” Whole Woman’s Health president and CEO Amy Hagstrom Miller
said. “At Whole Woman’s Health we know we’re on the right side of history – and
we’re hopeful that the court will be as well.”