Supreme Court justices agree to hear crucial Texas abortion case on March 2By Dave Andrusko
Last week, while NRL News Today was on break to celebrate Christmas, the Supreme Court announced the date it would hear arguments in a challenge to two key provisions of HB 2, Texas’s omnibus 2013 pro-life bill. The day the justices set is Wednesday, March 2, 2016.
This would mean, as was widely anticipated, that the justices would have a decision in Whole Woman’s Health v. Cole by the end of June–smack in the middle of the presidential contest.
HB 2 is best known outside the state for the filibuster that temporarily derailed the law. Pro-abortion state Senator Wendy Davis catapulted her role in that filibuster to national fame, which tempted her to run what proved to be a disastrous campaign for governor in 2014.
At issue are two provisions: (1)that abortion clinics meet the same building standards as ambulatory surgical centers (ASCs); and (2) that abortionists have admitting privileges at a nearby hospital for situations of medical emergencies. The latter has already gone into effect.
Austin-based U.S. District Judge Lee Yeakel declared the requirements unconstitutional but was reversed by the U.S. Court of Appeals for the 5th Circuit. 
As we have written previously, the various and sundry challenges to H.B. 2, the twists and turns, are mind-numbingly complex. (See here and here.)
We’ll address a few of them after gleaning what we can from a story that appeared in Reuters today. Their reporters had access, which we don’t, to a brief filed late Monday by lawyers for Whole Woman’s Health and other abortion clinics in Texas.
The overall thrust is nothing new: the law, the New York-based Center for Reproductive Rights argues, imposes an “undue burden” on women seeking to abort and, contrary to assurances by the state, does not improve medical safety for women.
Referring specifically to the requirement that abortion clinics meet the standards of ambulatory surgical centers, the CRR told the justices that nearly half of the 40 abortion clinics operating in Texas closed after the law passed and “many more would shut down,” if the law is upheld.
CRR lawyers also insisted abortion is “safer than many other common medical procedures.”
Judge Edith Jones wrote the unanimous opinion for a three-judge panel of the U.S. Court of Appeals for the 5th Circuit that upheld provisions of Texas’ H.B. 2, challenged by the Planned Parenthood Federation of America, the American Civil Liberties Union, the Center for Reproductive Rights, and several Texas abortion clinics.
In her 34-page opinion, Jones noted something never mentioned in press accounts: “Planned Parenthood conceded that at least 210 women in Texas annually must be hospitalized after seeking an abortion.”
Judge Jones also wrote, “Witnesses on both sides further testified that some of the women who are hospitalized after an abortion have complications that require an OB/GYN specialist’s treatment. ” She added, “Against Planned Parenthood’s claims that these women can be adequately treated without the admitting-privileges requirement, the state showed that many hospitals lack an Ob/Gyn on call for emergencies.”
Then there is the thorough and thoughtful 44-page brief previously filed by Texas Attorney General Ken Paxton.
Among many other arguments, Attorney General Paxton reminded the justices that
Petitioners ignore the fact that under the Fifth Circuit’s decision, which granted as-applied relief in McAllen, every metropolitan area with an abortion facility operating today in Texas will still have an operating abortion facility if the ruling takes effectIn addition, he wrote, “States are given wide discretion to pass medical regulations.” Paxton explained that the admitting privileges requirement had already been upheld by courts in a separate lawsuit which “correctly conclude[d] that the challenged provisions of HB2 do not facially impose an undue burden.”
Petitioners ask this Court to depart from a quarter-century of this Court’s abortion jurisprudence by judging for itself the medical effectiveness of HB2’s requirements and balancing it against the burdens purportedly caused by HB2. 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 abortion providers] wish to proceed as if their first lawsuit against HB 2 never happened,” the state attorneys continued. “But they litigated that case to a final judgment, and arguments and evidence they chose not to present there are barred.”