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 health.”
Paxton defended the law after the Supreme Court arguments.
“If 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 clinic.”
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 state.
“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 Supreme Court.
“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 surgical centers.
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 proper staffing.
“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.”