UPDATE::Will Roberts Court Take Up Case Against Nation's Most Radical Anti-Choice Law?

A coalition of women’s health-care providers, on behalf of Texas abortion providers, are urging the U.S. Supreme Court to consider the legality of the nation’s most radical set of anti-choice policies.

“This case will determine whether Texas can force more than 75 percent of the State’s abortion clinics to close,” opens the brief filed with the Roberts Court late Tuesday night.

The brief asks the Roberts Court to review a June 2015 decision from the U.S. Court of Appeals for the Fifth Circuit, which upheld portions of HB 2 that advocates say would close more than 75 percent of abortion clinics in Texas and cut off access to safe and legal abortions for millions of Texans.
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Advocates argue in their filing that if the Roberts Court fails to step in, only ten clinics will remain open in the state, down from 41 prior to HB 2’s enactment and a net reduction of more than 75 percent of the abortion facilities in the state in a two-year period. Should this happen, advocates say, “every woman in Texas would have to live under a legal regime that fails to respect her equal citizenship status and would force her to grapple with unnecessary and substantial obstacles as a condition of exercising her protected liberty.”

Will Roberts Court Take Up Case Against Nation's Most Radical Anti-Choice Law?

See also: Abortion Providers Ask Supreme Court to Take Up HB 2Providers want ASC and admit privileges rules gone 

Providers contend the 5th Circuit’s decision is in “direct and acknowledged” conflict with decisions from the 7th and 9th Circuit Courts, as well as the Iowa Supreme Court, which hold that courts, “must examine the extent to which laws regulating abortion actually further a valid state interest in assessing whether the burdens they impose on abortion access are undue.” While the 5th Circuit applied a narrow approach (and didn’t seriously factor in barriers women face), the 7th and 9th Circuit courts used a so-called balancing test for undue burden that weighs the obstacles for women against the state's purported health interest, creating a divergence in Circuit court rulings.

Abortion providers argue the ruling “flouted longstanding [Supreme Court] precedent” by defying standards set by seminal 1992 abortion-rights case, Casey v Planned Parenthood. The 5th’s inability to find that the “abrupt closure” of more than three-fourths of Texas abortion clinics would create substantial obstacles to abortion access, “makes a mockery of the standard articulated in Casey,” they write. Such “blatant defiance” of the Court’s precedents calls for review.

Providers also call into question the law’s ability to uphold Fourteenth Amendment guarantees as it, “fails to respect [a woman's] equal citizenship status and would force her to grapple with unnecessary and substantial obstacles as a condition of exercising her protected liberty.” Review from the nation’s highest court is needed to avert “profound and irreparable harm” to Texas women, they conclude.

UPDATE::Court to rule on Texas abortion law which closed clinics across state

As assumed in a previous posting concerning HB2,,,

Abortion is back before the Supreme Court, and the justices could signal by the end of June whether they are likely to take up the biggest case on the hot-button subject in nearly a quarter-century.

If the court steps in, the hearing and the eventual ruling would come amid the 2016 presidential campaign.

The court is considering an emergency appeal from abortion providers in Texas, who want the justices to block two provisions of a state law that already has forced the closure of roughly half the licensed abortion clinics in the state. Ten of the remaining 19 clinics will have to shut their doors by July 1, without an order from the Supreme Court.

The Texas law is among a wave of state measures in recent years that have placed restrictions on when in a pregnancy abortions may be performed, imposed limits on abortions using drugs instead of surgery and increased standards for clinics and the doctors who work in them.

The Texas case involves the last of these categories. The provisions at issue require clinics to meet hospital-like surgical standards and also call on doctors who work in the clinics to have admitting privileges at a nearby hospital. Republican presidential candidate Rick Perry signed the law in 2013 when he was the state’s governor.

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The case could be attractive to the justices because it might allow them to give more definition to the key phrase from their last big abortion ruling, Planned Parenthood v. Casey, in 1992. States generally can regulate abortion unless doing so places “an undue burden” on a woman’s right to get an abortion.

Court to rule on Texas abortion law which closed clinics across state

The Fifth Circuit Just Stuck A Knife In Roe v. Wade | ThinkProgress

The other day I posted this, Texas family beat 14-year-old rape victim for six hours to induce an abortion.  In my opening I briefly mentioned the lack of access to legal abortions, referencing the attached ruling. As it pertains to Texas, I overlooked much minutiae, in regards to Roe v Wade, a gaping hole.

First Texas,,,

Lachman, in her HuffPo piece, focused on "provisions [of Texas HB-2] requiring clinics to meet hospital-level operating standards and requiring providers to have admitting privileges at local hospitals."  Specifically how they relate to clinics in McAllen and El Paso, "that women living near those cities would have to travel over 200 miles to access the procedure in larger urban areas like San Antonio or Houston."

What is intriguing, the contrast Lachman points out,

A different 5th Circuit panel had previously ruled that Mississippi could not enforce its admitting privileges law because enforcement would cause the state's only abortion clinic to close. The court said it was unconstitutional for the state to delegate constitutional rights to its neighbors. In the Texas decision, the courtsaid the Texas and Mississippi cases were "distinguishable" because theformer would still have multiple clinics in operation if the admitting privileges provision was in effect.

In other words, the 5th Circuit Court is splitting hairs, "it was unconstitutional for the state to delegate constitutional rights to its neighbors", regardless of whether "[p]rior to H.B. 2, more than half of the women who obtained abortions at the Santa Teresa facility were from El Paso."

"The closest Texas abortion facility that will remain open is in San Antonio, over 550 miles away," the court wrote. "There is an abortion facility approximately twelve miles away in Santa Teresa, New Mexico.

Which brings us to Millhiser's and his analysis that fills in some holes concerning Texas.

HB2 is crafted to appear like a health regulation, even though it does little to actually advance the public health. The two provisions challenged in Whole Woman’s Health include a requirement that abortion doctors have admitting privileges in a nearby hospital, and a list of expensive architectural and other requirements that abortion clinics must comply with in order to operate. There is little evidence, however, that either provision actually advances the goal of making abortion safer for women. To the contrary, a federal district judge determined that “there is no rational relationship between improved patient outcomes and hospital admitting privileges,” and he reached similar conclusions with respect to the portions of the law regulating clinic facilities. 

Before HB2, Texas had 40 licensed abortion clinics. If the law takes full effect, “only seven facilities and a potential eighth will exist in Texas that will not be prevented . . . from performing abortions.” This reduced access to abortion, according to the same district judge, “almost certainly cancel[s] out any potential health benefit associated with” HB2 because of “[h]igher health risks associated with increased delays in seeking early abortion care, risks associated with longer distance automotive travel on traffic-laden highways, and the act’s possible connection to observed increases in self-induced abortions.”

When this case goes to SCOTUS, it will be up to our esteemed justices to determine whether "legitimate state interest" is at stake in this instance (Planned Parenthood v. Casey, 1992)

The American Medical Association (AMA) and the American College of Obstetricians and Gynecologists (ACOG) recently submitted a joint amicus brief opposing the law, stating that “H.B. 2 does not serve the health of women in Texas but instead jeopardizes women’s health by restricting access to abortion providers.”  Medical experts confirm that legal abortion care in the U.S. is extremely safe, with less than 1 percent of patients requiring care in an emergency room.

That brings us to Roe v Wade and a issue I never considered, at least not in the direct manner Millhiser presents.

In 2013, Texas enacted HB2, which is one of a number of sham health laws passed by anti-abortion lawmakers who believe that they found a loophole in the Supreme Court’s abortion cases. Though current Supreme Court precedent forbids laws that impose an “undue burden” on the right to choose, states may enact legitimate health regulations that govern abortion providers — and for good reason. Abortion facilities, just like any other medical facility, should be sanitary, safe and operated by competent medical personnel.

Millhiser cites Gonzales v. Carhart (2007) a ruling in which,

Kennedy’s opinion,,,gives lawmakers “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” The upshot is that the question of how to protect a woman’s health during an abortion is no longer left entirely to her doctor — much of it is now left to members of Congress or state lawmakers who are free to resolve “uncertainty” among physicians in favor of their personal policy preferences.

What may sound like a bit of snark on Millhiser part is actually quite important in the world of legal mumbo-jumbo, "The upshot is that a state can defeat a facial challenge to an anti-abortion law so long as it raises enough of a smokescreen suggesting that its impact on women’s health is uncertain."  This is referring to Millhiser delineation between the two forms of constitutional challenge, "A 'facial' challenge seeks to invalidate a law entirely; while an 'as-applied' change merely argues that the law cannot be applied to a particular plaintiff or plaintiffs."

Maybe it is time for Choice advocates to get down-and-dirty looking for semantic loopholes.

The Fifth Circuit Just Stuck A Knife In Roe v. Wade | ThinkProgress

UPDATE::Court blocks abortion limits in Texas : SCOTUSblog

Over the dissents of three Justices, the Supreme Court on Tuesday evening barred Texas from enforcing two parts of its new abortion-restriction law — one part as it applied throughout the state, the other as it applied to two clinics in the southwest part of the state.

The state may not now enforce a requirement that all clinics in the state upgrade their facilities to be hospital-like surgical centers, even when they perform abortions only through the use of drugs, not surgery. And it may not enforce, against the clinics in McAllen and El Paso, a requirement that all doctors performing abortions have privileges to admit patients to a hospital within thirty miles of the clinic. That requirement can continue to be enforced elsewhere in Texas, the Court indicated.

Those two provisions, together, had reduced the number of clinics still operating in the state to seven, with an eighth soon to open. At one time recently, Texas had forty-one clinics. The Supreme Court’s action Tuesday will allow the reopening of thirteen closed clinics on Wednesday, lawyers for the clinics said.

The Court’s order will remain in effect while the U.S. Court of Appeals for the Fifth Circuit rules on a constitutional challenge to the two measures. That court had previously upheld the admitting privileges requirement as it applied all across the state. Most recently, it had blocked a new ruling by a judge in Austin that seemed to invalidate the two provisions statewide.

The Supreme Court gave no explanation for the four-sentence order. It noted that Justices Samuel A. Alito, Jr., Antonin Scalia, and Clarence Thomas would have refused to delay any part of the state requirements. They did not give their reasoning. It would have taken the votes of five Justices to block the provisions, so it appears that at least that number from among the other six Justices voted for the result. The Justices voting for the order were not noted.

In asking the Court to set aside, temporarily, the Fifth Circuit’s orders permitting enforcement of the two provisions, lawyers for the clinics had said that clinics closed as a result probably would not reopen unless those restrictions were lifted. They also contended that there had recently been an increase in the number of women seeking illegal abortions in areas where clinics could no longer provide service

Court blocks abortion limits in Texas : SCOTUSblog

UPDATE::Attorneys For Abortion Clinics File An Appeal With SCOTUS | Texas Public Radio

A national abortion-rights group has filed an appeal with the US Supreme Court. The Center for Reproductive Rights is asking justices to reinstate a lower court’s order that blocks the State of Texas from enforcing its ambulatory surgical center requirements.

They're hoping a SCOTUS appeal will reverse the US 5th Circuit Court’s decision to allow the state to enforce this portion of Texas’ Abortion law while they await a full hearing. Looking at a similar appeal concerning the state’s enforcement of the law’s admitting privileges requirement, this request could prove to be an uphill challenge.

Esha Bhandari is staff attorney with the Center for Reproductive Rights and said, “We think this case is different from the admitting privileges case because the impact is so drastic, leaving 7-clinics in such a large state is simply not enough and women’s constitutional rights are at risk.”

Attorneys For Abortion Clinics File An Appeal With SCOTUS | Texas Public Radio

13 Abortion Clinics Forced to Close Overnight in Texas | Alternet

Thirteen abortion clinics in Texas were forced to close overnight as a result of a Thursday ruling by the U.S. Court of Appeals for the Fifth Circuit. Texas, the second largest and the second most populous state in the country, will now have only eight abortion clinics to serve its more than five million women of reproductive age.

The decision upheld Texas’ House Bill 2’s requirement that abortion clinics meet ambulatory surgical center standards. These centers are hospital-like centers abortion providers say are unnecessary for a relatively simple procedure that often takes five to ten minutes.

This ruling by a three-judge panel overturns U.S. District Court’s Judge Lee Yeakel’s August decision that found HB2’s surgical center rule unconstitutional. He said that the rule placed an undue burden on women trying to access abortion services and that the reduction of clinics in such a large state functioned “just as drastically as a complete ban on abortion.”

This is the second time the U.S. Court of Appeals for the Fifth Circuit, a notoriously conservative federal appellate court, has overturned Yeakel’s rulings. Several months ago, they overturned his decision that HB2’s admitting-privileges rule was also unconstitutional.

HB2 has already closed half of Texas’ abortion clinics. The state went from 41 in June 2013 to 20 in June 2014. Today, the state has eight.

13 Abortion Clinics Forced to Close Overnight in Texas | Alternet

A Federal Judge Just Called Out The Big Lie Behind Texas's Latest Abortion Restriction | ThinkProgress

The new architectural requirements require abortion clinics to meet the standards established for what are known as “ambulatory surgical centers” in the state of Texas. Yet, as Yeakel explains, there’s little good reason to treat abortion clinics this way. Many clinics, for example, do not perform surgical abortions at all, only medication abortions that use drugs to terminate a pregnancy. Yet the Texas law requires abortion clinics that perform no surgeries whatsoever to undertake expensive renovations that transform them into surgical facilities.

Even in clinics that do perform surgical abortions, women are more likely to experience higher health risks because HB2 forces clinics close to them to shut down then they are to gain some benefit from the new restrictions. “Higher health risks associated with increased delays in seeking early abortion care, risks associated with longer distance automotive travel on traffic-laden highways, and the act’s possible connection to observed increases in self-induced abortions almost certainly cancel out any potential health benefit associated with the requirement.”

The most remarkable portion of Yeakel’s opinion, however, may be the fact that he does not simply analyze the effect of Texas’s law. He also accuses the state of outright dishonesty. Responding to the state’s argument that some Texans can seek abortions in New Mexico if they are unable to obtain one in Texas thanks to HB2, Yeakel notes that this argument completely undermines any suggestion that these laws are supposed to protect women’s health,,,

A Federal Judge Just Called Out The Big Lie Behind Texas's Latest Abortion Restriction | ThinkProgress