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Supreme Court Tests Texas' New Restrictions On Abortion

Mar 2, 2016
Originally published on May 4, 2016 1:55 pm

Even with the death of Justice Antonin Scalia, Wednesday could mark a potential turning point for the Supreme Court on the subject of abortion. At issue is whether a new Texas law imposes restrictions that unconstitutionally limit a woman's right to terminate a pregnancy.

Last June, a federal appeals court upheld the law. If the Supreme Court agrees, it would mean a dramatic cutback on abortion rights across the country, and potentially a steppingstone toward the reversal of Roe v. Wade.

The Texas Omnibus Abortion Bill, known as HB 2, requires all abortions — either surgical or medical, meaning with pills — to be done in ambulatory surgical centers. Such facilities are mini-hospitals, with wide corridors, large operating rooms and advanced HVAC systems, among other requirements. A second provision requires doctors performing either surgical or medical abortions to have admitting privileges at a hospital within 30 miles of the clinic.

The state says it enacted these provisions to protect the health and safety of women. Virtually the entire established medical profession, both in Texas and nationally, disagrees.

The American Medical Association and the American Academy of Family Physicians, among others, have joined the American College of Obstetricians and Gynecologists in telling the justices that these provisions are "unnecessary" and "harmful" to women's health and safety. The major medical groups contend that the law erects gratuitous barriers to abortion, adds needless expense, and — by causing the closure of so many clinics — creates significant delays that sometimes push abortions into the second trimester.

At a Fort Worth, Texas, clinic that performs abortions, the protesters were out early in the morning — and so were the patients, some of whom had traveled long distances by car and bus to get here.

"I figured there'd be another clinic in my city, and come to find out there wasn't," said one woman, who, like all the women we spoke to, declined to give her name for fear of harassment.

She had taken the day off, arranged for child care and driven nearly 150 miles from home to get an abortion.

Prior to HB 2, there was in fact a clinic in her home city, but it closed on the day the new Texas law went into effect in 2014. Indeed, before the law was enacted, there were 41 clinics in the state that perform abortions. Today there are 19, and if both of the provisions at issue in Wednesday's case are upheld, at least 10 of those 19 would close, including this one in Fort Worth.

For one of the bill's co-authors, the issue is a personal one: State Rep. Jason Isaac says his mother was born as the result of a rape.

"I don't believe that I would be here today conducting this interview if Roe v. Wade were in effect in 1944," Isaac told NPR. "We can't end abortion in Texas, but we can make it as safe as humanly possible."

Texas Solicitor General Scott Keller will tell the justices that 10 women per week visit emergency rooms for complications from abortions, and that the ambulatory surgical center standards are necessary for dealing with more acute emergencies, "ensuring that EMTs can have access to the facilities" and that "there's not a maze of hallways."

At the Fort Worth clinic, hallways are only a little more than half the 8-foot width of the state law requirements — but, as Dr. Bhavik Kumar points out, wide enough for a stretcher. In case of an acute emergency, he says, a clinic staffer would wait outside to direct EMTs to the appropriate back door so that they would have quick and easy access to the hallway and procedure rooms.

The doctor says that in his year at the clinic, he's had no emergencies requiring outside medical help.

"It's a simple procedure — about five to eight minutes, depending on how far along they are," Kumar says.

Kumar notes that there is no general anesthesia, as is necessary for colonoscopies, liposuction and other procedures that aren't as strictly regulated in Texas.

"Actually, it's much safer than colonoscopy," says Dr. Hal Lawrence, executive vice president and CEO of the American Congress of Obstetricians and Gynecologists. "As time has moved forward, we have seen how safe abortion is."

Indeed, one study published in the American Journal of Public Health found that major complications for first-trimester surgical abortions occur in 1 in 2,000 of all such procedures.

Texas' Keller maintains that in fact there have been more complications from medical abortions than from surgical abortions. That, he says, is among the reasons the state law requires all abortion doctors to have privileges in a nearby hospital.

"It's not as if abortion is completely safe, without any complications," Keller says. "Everyone admits that there can be significant health consequences from these complications."

But the brief filed by major medical associations says that in modern medicine, doctors increasingly are giving up hospital privileges to in-hospital doctors. And, says Lawrence, if an abortion patient does go to the hospital with some sort of complication, "there are obviously emergency room physicians there, and OB-GYNs at those hospitals, that can help."

Most such complications, he adds, involve bleeding not significant enough to require hospitalization.

Lawyer Stephanie Toti, representing the clinics, will tell the Supreme Court on Wednesday that if the admitting privileges and ambulatory surgical center requirements truly offered a health benefit, they would apply across the board to other similar — and, indeed, more dangerous — outpatient procedures.

"The fact that Texas has singled out abortion by itself for the imposition of these requirements shows that their true purpose isn't to improve patient health and safety; it's just to burden abortion," she says.

The Supreme Court has allowed states to regulate abortion differently from other procedures, but the court ruled in 1992 that states may not impose an "undue burden" on a woman's constitutional right to terminate a pregnancy.

Texas argues that there is no undue burden here. Keller observes that even if many more clinics are forced to close, "every metropolitan area in Texas that has a clinic today will still have one."

The clinics counter that so many clinics have had to close under the law that vast expanses of Texas, the second-largest state in the country, already are uncovered — and that the remaining clinics have long wait times.

That was borne out by the women we met at the Fort Worth clinic. One woman in her 20s raced to the clinic when there was an unexpected cancellation, allowing her to get in weeks earlier.

"It'd be a very devastating thing for women not to be able to make their own choice, and have to wait a month and be even further along, to not be able to do this," she said.

Another woman drove 100 miles with her husband to get here because the clinics that perform abortions near her town had closed — and because the birth of her first child, she says, nearly killed her.

"I had a severe complication in the birth process, and the doctor advised me not to have any more — so here we are," she told us. Her husband ferociously interrupted our interview to say he did not want to be a widower raising a child without his wife.

Isaac, the co-author of HB 2, says that women who live hundreds of miles from the nearest clinic should acknowledge that reality and act accordingly.

"Hopefully," Isaac said, "they'll be more preventative and not get pregnant." Women who live far from a clinic should realize, he said, that, "Hey, that might still be an option legally, but now I live 300 miles away from the nearest place — I should probably be more careful."

Despite the death of Scalia last month, Justice Anthony Kennedy remains the likely swing vote in the Texas abortion case. If he votes to strike down the law, there would be at least a 5-to-3 majority for that outcome. But if he votes to uphold the law, the court would very likely be tied on a 4-to-4 vote. That would leave the Texas abortion law in place, at least until a full nine-justice court considers the issue at some later time.

Beyond Texas, that would affect 13 other states that have enacted similar laws. Some have been blocked by the lower courts, while others have not — and until the issue is resolved, the lower regional court decisions will dictate the results, state by state.

Copyright 2018 NPR. To see more, visit http://www.npr.org/.

RENEE MONTAGNE, HOST:

The Supreme Court floats in the background of most presidential elections but not this one. And the reason why the High Court is front and center will be clear today when eight, rather than nine justices, hear arguments in a case involving abortion. At issue is whether a Texas law imposes restrictions that unconstitutionally limit a woman's right to terminate a pregnancy. If upheld, the Texas law could lead to a dramatic cut back on abortion rights across the country. NPR legal affairs correspondent Nina Totenberg reports.

(SOUNDBITE OF PROTEST)

UNIDENTIFIED PROTESTER: God commands you to not murder your baby. God hates the hands that shed innocent blood.

NINA TOTENBERG, BYLINE: At the Fort Worth clinic, the protesters are out early in the morning - and so are the patients, some of whom have traveled long distances by car and bus to get here.

UNIDENTIFIED WOMAN #1: I figured there'd be another clinic in my city and come to find out there wasn't.

TOTENBERG: This woman took a day off and drove nearly 300 miles round-trip to get an abortion. There was an abortion clinic in her home city. But it closed on the day the new Texas law, known as HB2, went into effect in 2014. Indeed, before the law was enacted, there were 41 abortion clinics in the state. Today, there are 19. And if both of the provisions at issue in today's case are upheld, at least 10 of those 19 would close, including this clinic in Fort Worth. As passionate as abortion rights advocates are about this case, so too are abortion opponents, including one of the co-authors of HB2, Jason Isaac, who says his mother was born as the result of a rape in 1944.

JASON ISAAC: I don't believe that I would be here today conducting this interview if Roe v. Wade were effect - in effect in 1944.

TOTENBERG: The new Texas law requires all abortions to be done in ambulatory surgical centers that are mini hospitals with wide corridors, large operating rooms and an advanced air conditioning system among other requirements. A second provision requires any doctor performing an abortion to have admitting privileges at a hospital within 30 miles of the clinic. Again, Mr. Isaac.

ISAAC: To me, that seems like good, common sense legislation.

TOTENBERG: Virtually the entire established medical profession in Texas and nationally disagrees. The American Medical Association and other major medical groups have joined the American College of Obstetricians and Gynecologists in telling the justices that these provisions are unnecessary. They're harmful to women's health and safety, expensive and cause delays that sometimes push abortions into the second trimester. Texas Solicitor General Scott Keller will tell the justices today that 10 women a week visit emergency rooms for complications from abortion, both surgical and by pill, and that the ambulatory surgical center standards are necessary for dealing with more acute emergencies.

SCOTT KELLER: Ensuring that EMT's can have access to the facilities, that there are - there's not a maze of hallways.

TOTENBERG: At the Fort Worth clinic, hallways are only about half the 8-foot width of the state law requirement. But as Dr. Bhavik Kumar points out, wide enough for a stretcher.

BHAVIK KUMAR: They would come in through this door. Both the procedure rooms would be directly accessible by anybody.

TOTENBERG: The doctor says that in his year at the clinic, he's had no emergencies requiring outside medical help.

KUMAR: It's a simple procedure, about five to eight minutes depending on how far along they are.

TOTENBERG: Dr. Kumar notes that there's no general anesthesia as there is for colonoscopies, liposuction and other procedures that are not so strictly regulated in Texas.

HAL LAWRENCE: Actually, it's much safer than a colonoscopy.

TOTENBERG: Dr. Hal Lawrence is CEO of the American College of Obstetricians and Gynecologists, ACOG.

LAWRENCE: The instance of a serious complication requiring hospitalization for abortion is incredibly low.

TOTENBERG: Indeed, one study published in the American Journal of Public Health found that major complications from first trimester surgical abortions occur one-twentieth of 1 percent of the time. The state's Keller replies that when there are serious complications however, it's important to have a physician with hospital admitting privileges nearby the clinic.

KELLER: Everyone admits that there can be significant health consequences from those complications.

TOTENBERG: But the brief filed by major medical associations contends that in today's medical world, doctors are increasingly giving up hospital privileges to doctors hired by the hospital. And, says ACOG's Dr. Lawrence, if an abortion patient does go to the hospital with some sort of complication...

LAWRENCE: ...There are obviously emergency room physicians there and OBGYN's at those hospitals that can help.

TOTENBERG: Lawyer Stephanie Toti will tell the Supreme Court today that if the admitting privileges and ambulatory surgical center requirements truly offered a health benefit, they would apply across the board to all similar, and indeed more dangerous, outpatient procedures.

STEPHANIE TOTI: But the fact that Texas has singled out abortion by itself for the imposition of these requirements shows that their true purpose isn't to improve patient health and safety. It's just to burden abortion.

TOTENBERG: The Supreme Court has allowed states to regulate abortion differently from other procedures. But it said states may not impose an undue burden on a woman's right to terminate a pregnancy. Texas argues there is no undue burden here. Scott Keller maintains that even if many more clinics are forced to close...

KELLER: ...Every metropolitan area in Texas that has a clinic today will still have one.

TOTENBERG: Clinic defenders counter that fast expanses of this second-largest state in the country would be uncovered, making for long waits at the existing clinics. That's borne out by the women we met at the Fort Worth clinic who asked not to be identified for fear of harassment. This woman raced to the clinic when a cancellation allowed her to avoid a one month wait.

UNIDENTIFIED WOMAN #2: It'd be a very devastating thing for women not to be able to make their own choice and have to wait a month and be even further along to not be able to do this.

TOTENBERG: Another woman drove 200 miles round-trip with her husband to get here because the abortion clinics that were near her town had closed, and the birth of her first child, she says, nearly killed her.

UNIDENTIFIED WOMAN #3: I had a severe complication in the birth process, and the doctor advised me not to have any more. So here we are.

TOTENBERG: Texas Statehouse member Isaac replies that women who live two or 300 miles from the nearest clinic should acknowledge that reality.

ISAAC: Well, hopefully they'll be more preventative.

TOTENBERG: You mean not get pregnant.

ISAAC: Not get pregnant yes, and realize that hey, that might still be an option legally, but now I live 300 miles away from the nearest place. I should probably be more careful.

TOTENBERG: Despite the death of Justice Antonin Scalia last month, Justice Anthony Kennedy remains the likely swing vote in this case. If he votes to strike down the Texas law, there would be at least a 5 to 3 majority for that outcome. But if he votes to uphold the law, the court would likely be tied. And the Texas abortion law would remain in place, at least for now. Nina Totenberg, NPR news, Washington.

[POST-BROADCAST CORRECTION: An earlier version of this transcript incorrectly attributed two quotes. It was Texas State Rep. Jason Isaac who said that if clinics that perform abortions are farther away from their homes, women might be "more preventative." He also said that women might not "get pregnant ... and realize that, 'hey, that might still be an option legally, but now I live 300 miles away from the nearest place. I should probably be more careful.'"] Transcript provided by NPR, Copyright NPR.